HomeMy WebLinkAboutCS 29-10
cibl o~ Report To
Executive Committee
PICKERING Report Number: CS 29-10
124 Date: July 5, 2010,
From: Gillis A. Paterson
Director, Corporate Services & Treasurer
Subject: Duffin Heights Neighbourhood
- Cost Sharing Agreement
- Stormwater Management Facility #4
Recommendations:
1. That Report CS 29-10 of the Director, Corporate Services & Treasurer be received;
2. That the Mayor and the City Clerk be. authorized to enter into the Cost Sharing
Agreement (CSA), as may be amended from time to time, with the Duffin Heights
Landowners Group respecting the provision of infrastructure in the Duffin Heights
Neighbourhood, essentially in the form attached hereto and acceptable to the Chief
Administrative Officer, the Director, Corporate Services & Treasurer and the Director,
Planning & Development, subject to the following item being addressed to the City's
satisfaction;
(a) specific reference to Section 11.17 (p)(iii) of the City's Official Plan for Duffin
Heights within the CSA so that Non-Participating Owners may be entitled to obtain
clearance from the Trustee upon payment of their proportionate share of the costs
under the CSA.
3. That the Director, Corporate Services & Treasurer be authorized to make any changes
to the agreement, as may be amended, or subsequent agreements, to protect the
financial interests of the City and to sign any subsequent agreements including
amendments;
4. That the Clerk forward a copy of Report CS 29-10 to each member of the Duff in
Heights Landowners Group and the Trustee for information; and,
5. That the appropriate officials of the City of Pickering be authorized to take any
necessary actions to give effect thereto.
Executive Summary: On October 20, 2008, Council endorsed in principle the City
entering into a cost sharing agreement with the Duffin Heights Landowners Group (DHLG)
respecting the provision of infrastructure in the Duffin Heights Neighbourhood and front-
funding a portion of the costs of specific infrastructure that benefit the City, the Region,
Ontario Realty Corporation, Cougs and other non-participating landowners along Brock Road.
The approved Duffin Heights policies, in the Official Plan reflects this principle of equitable
Report CS 29-10 Date: July 5, 2010
Duffin Heights Neighbourhood Page 2
i 2-5-
cost sharing by requiring benefitting landowners to pay their equitable share of development
costs prior to receiving development approvals from the City.
The Duffin Heights Cost Sharing Agreement (CSA) provides a mechanism by which up-front
infrastructure costs borne by participating landowners are apportioned and equitably
recovered from benefitting landowners when they develop their lands. The CSA has been
reviewed by City staff as well as the Solicitor engaged for this purpose and is considered to be
a reasonable, fair and equitable contractual agreement to distribute the costs related to the
provision of required infrastructure and community lands (eg. Parks) necessary to service
Duffin Heights. It is therefore recommended that the City enter into and execute the CSA as a
Participating Owner with the DHLG. The City's role as a Participating Owner in the CSA will
be limited as detailed below.
This agreement will be a "living agreement" in that it will evolve and change with time as
estimated costs become known actual expenditures and as lands are developed. Hence the
need to provide for the appropriate officials to have the authority to undertake changes,
execute amendments and sign new agreements is necessary.
Financial Implications: The City's share of infrastructure costs, specifically with regards to
the over-sizing of the storm sewer on Brock Road and the SWM #4, was included in the 2009
budget in the amount of $2 million. The net cost to the City is estimated at $1.2 million, after
recovery from non participating landowners. The City's share of the cost will be recovered
from the eventual sale of City owned lands in Duffin Heights. These costs, including
temporary financing costs (interest), will be charged against City-owned lands in the area, to
be recovered from the proceeds of the eventual sale of these lands.
Sustainability Implications: Endorsing the report to sign the CSA will assist in achieving
the environmental and urban design objectives for Duffin Heights.
1.0 Background:
1.1 In July 2008, Duff in Heights Landowners Group (DHLG) requested the City to
support for a cost sharing agreement for required infrastructure to service Duff in
Heights, and front-fund the SWM #4 and related infrastructure required to
accommodate the Brock Road reconstruction
In July 2008, two requests to the City from DHLG were received. First, the City was
requested to execute a cost sharing agreement in order to ensure that future
purchasers of City-owned lands in Duffin Heights will be responsible for an equitable
cost-sharing of the development costs prior to receiving any development approvals,
and that this requirement be included as Official Plan policy.
Report CS 29-10 Date: July 5, 2010
Duffin Heights Neighbourhood Page 3
I
126
Second, DHLG requested the City front fund the design and construction of specific
infrastructure that benefits the City, the Region, ORC, Cougs and other non-
participating landowners along Brock Road. The works included in the request
comprise the following:
(i) Brock Road storm sewer over-sizing; and
(ii) the SMW #4 that is proposed to be located at the northeast corner of the Third
Concession Road (Rossland Road) and Brock Road.
On October 20, 2008, Council endorsed both the Duffin Heights Environmental
Servicing Plan (ESP) and the principle of entering into a cost sharing. agreement with
the DHLG respecting the provision of infrastructure in Duffin Heights. Staff was
directed to report back to Council seeking formal authority to execute the cost sharing
agreement and authority to front-fund the costs of infrastructure relating to the Brock
Road storm sewer over-sizing and SWM #4 when the cost sharing agreement was
finalized. Therefore, both requests or directions will have been accomplished with
the adoption of the E.S.P. and the Recommendations contained in this report.
1.2 The approved neighborhood policies for Duff in Heights requires all landowners
to pay their equitable share of development costs prior to receiving development
approvals
The approved Official Plan policies Section 11.17(p)(iii), for Duffin Heights contain a
policy that reflects this principle of equitable cost-sharing for landowners and requires
that a landowner either:
(i) becomes a party to the cost sharing agreement for Duffin Heights; or
(ii) receives an acknowledgement from the Trustee, representing the DHLG, under
the CSA that it has made satisfactory arrangements to pay its proportion of the
shared development costs.
1.3 The DHLG has submitted a cost sharing agreement including the appropriate
schedules for execution
Sernas, on behalf of the DHLG, has submitted the CSA, including the appropriate
schedules and maps to the City for staff's review. The principles of the CSA are to
provide an equitable cost-sharing mechanism for participating front-ending landowners
as well as non-participating owners in order to distribute the costs related to the
provision of community lands and services, works and facilities.
In the attached CSA dated March 19, 2010, `Participating Owners" refers to Mattamy
(Brock Road) Limited, Lebovic Enterprises Limited and Ontario Realty Corporation and
these companies have signed the agreement. The CSA was originally drafted to
incorporate three related companies - Cougs (Tillings) Ltd., Cougs (Dersan).Ltd., and
Cougs (Brock Road) Ltd., as participating owners for three properties in Duffin Heights.
However, these companies will be removed from the agreement to be executed and
reinserted at a later date when appropriate. The City is a participating owner insofar as
i
Report CS 29-10 Date: July 5, 2010
Duffin Heights Neighbourhood Page 4
177
relates to SWMP #4. 'Non-participating owners' are defined as landowners who have
benefiting lands in Duffin Heights but are not a party to the CSA.
2.0 Discussion:
2.1 The CSA for Duffin Heights is in a form that is commonly utilized by the .
development industry
Cost sharing agreements are the norm in the development industry in Ontario.
Typically, such agreements generally set out various obligations that will be met by the
signatories to the agreement (who are identified as "Participating Owners") with respect
to the provision of community lands and community services.
The. Participating Owners agree to front fund the costs of community services which
include such works as community roads, storm water facilities, water mains, etc. The
cost sharing agreement is normally administered by a Trustee and one set of
consultants (usually engineers and planners) is appointed for the group and provide
advice to the group with respect to the agreement. Services are identified in advance,
usually through undertaking of a master servicing analysis or study. In the case of
Duffin Heights, an Environmental Servicing Plan was prepared that identified required
infrastructure. Sernas will be the Trustee, appointed by the DHLC.
The CSA pertains to services which are of "community benefit" (i.e. benefit more than
one owner and usually the group as a whole). Schedules to the CSA have been
prepared by Sernas and contain detailed estimates of the costs of the community
benefit, factoring in the land cost, the cost of design, the cost to construct, permit costs,
and consulting fees.
2.2 The CSA represents a fair and equitable contractual agreement to distribute the
costs related to the provision of required infrastructure and community lands in
Duff in Heights
Based on the review of City staff, Watson & Associates and the solicitor retained by the
City, the CSA generally provides for an equitable and proportionate distribution of both
land servicing and community land costs among the participating owners and non-
participating owners.
However, City staff and its consultants have identified a specific item that needs to be
clarified in the CSA as follows:
(a) specific reference needs to be made to Section 11.17 (p)(iii) of the City's Official
Plan for Duffin Heights so that Non-Participating Owners may be entitled to
obtain clearance from the Trustee upon payment of their proportionate share of
the costs under the CSA.
Report CS 29-10 Date: July 5, 2010
Duffin Heights Neighbourhood Page 5
128
This issue has been communicated to the Duffin Heights Landowners Group's solicitor,
on behalf of the Trustee, who is seeking to address these matters to staff's satisfaction.
A number of minor items are also being amended or clarified.
Subject to the above-noted issue being resolved, it is our solicitor's opinion that the
CSA document is reasonable and represents a fair and equitable contractual
agreement to distribute the costs related to the provision of required infrastructure and
community lands amongst benefiting owners, present and future. The solicitor is also
of the view that the City as the approval authority should not have any concerns that the
CSA is inequitable or unfair.
Mr. Watson's ongoing review of the financial and cost-sharing schedules of the CSA
and ultimate conclusions will also note any concerns with the CSA. Staff concurs with
the solicitor's opinion at this time subject to the foregoing items being satisfactorily
addressed. The Director, Corporate Services & Treasurer and Watson & Associates
Economists Ltd. continue to review the agreement, especially the financial clauses and
cost sharing. Any items identified will be discussed with the DHLG and incorporated in
the final agreement.
2.3 Additional payments from non-participating landowners may be necessary until .
the actual costs of construction are known
The CSA contemplates that non-participating owners must, in general, become
participating parties to the CSA in order to receive the benefits of the community
services that have been paid for and provided and community lands that have been
provided. The Trustee may, however, choose to make other arrangements with a non-
participating owner in order to satisfy the financial obligations under the CSA.
The cost sharing agreement addresses a number of costs that are ongoing and others
that are subject to adjustment over time. As an example, the costs to maintain school
sites from the date a plan of subdivision is registered until a block. is sold to a school
board are shared. In relation to hard services, the costs contained in the engineering
schedules are estimates until the actual cost of construction is known. Non-
participating owners have an obligation to share in the actual costs of shared services
to the point of assumption of the services. Therefore, as mentioned above, this
agreement will continue to evolve.
2.4 The CSA for Duff in Heights is consistent with Council's previous approvals to
front- fund the costs for SWM #4
In October 2008, Council endorsed in principle the City entry into a cost sharing
agreement with the DHLG and for staff to report back seeking authority to front-fund the
costs of SWM #4 and related infrastructure.
Subsequently, Council In the 2009 budget, approved funds in the amount of $2 million
for the design and construction of SWM #4 and related infrastructure. In the CSA, the
City's share as a participating landowner amounts to $1,197,669. The front funding
Report CS 29-10 Date: July 5, 2010
Duffin Heights Neighbourhood Page 129
contribution for the share representing the non-participating landowners is $1,013,728.
The City's total cost for SWM #4 including related infrastructure and land is in
accordance with the estimated $1.81 million proposed by Sernas in a letter to the
former CAO dated July 9, 2008 (see Attachment 3). This estimate has since been
revised to $1.6 million.
The CSA has been drafted to specifically provide that the City is a Participating Owner
for sharing in the costs related to the construction of the SWM #4 and related
infrastructure required. It is, therefore, recommended that the City enter into and
execute the CSA with the DHLG respecting the front funding of required
infrastructure subject to the items specified in item 2.2 above being satisfied. If
there are any material changes to the CSA, it will not, be executed and staff will
report back to Council.
Attachments:
1. Duffin Heights Cost Sharing Agreement dated March 19, 2010
2. Letter from John Mascarin, Aird & Berlis LLP, dated June 22, 2010
3. Letter from Reg Webster, Sernas Associates, dated July 9, 2008
Prepared By: Approved / Endorsed By:
Grant Mc regor, ma PP Gillis A. Paterson
Principal Planner - Po ' y Director, Corporate S es & Treasurer
f
Gillis A. Paterson Neil Carr
Director, Corporate Services & Treasurer Director, Planni & Development
Everett Bu ma
Director, Operations & Emergency Services
Copy: Chief Administrative Officer
Recommended for the consideration
of Pickerin ity Co cil
24, Zolo
Tony Prevedel, P.Eng.
Chief Administrative Officer
i
F
. 3 0 ATTACHMENT #-4.TO REPORT q
DUFFIN HEIGHTS DEVELOPERS GROUP
COST SHARING AGREEMENT
I
March 19, 2010
INDEX 31
DUFFIN HEIGHTS DEVELOPERS GROUP
COST SHARING AGREEMENT
Document Tab
Table of Contents 1
Cost Sharing Agreement 2
Schedule "A-1" - Legal Description and assigned A
Property Identifier Numbers for all Participating
Landowners
Schedule "A-2" - Plan Depicting Participating A
Owners' Lands within Duffin Heights
Schedule "A-3" - Contact information for all A
Participating Owners and the Trustee
Schedule "A-4" - Reconciliation of Historical A
Administrative Costs
Schedule "134" - Plan depicting location of B
Community Services
Schedule "B-2" - Plan depicting location of B
Community Land
Schedule "C" - Consultant Engineer's Cost C
Sharing Schedules (to be appended following the
date of this Agreement)
Schedule "D" - Letter of Credit Form D
Schedule "E" - Mediation Rules E
Schedule "F" - Arbitration Rules F
Schedule "G" - Terms of Reference for G
Appraisals to determine Acreage Land Value
Schedule "H" - Front Funded Owner-Constructed H
Core Services as per Region's Front-Ending
Agreement
Schedule "1" - Plan depicting Trail Extension from I
Stormwater Management Pond located on
Mattamy's Lands to the Urban Boundary of
Pickering (at Ajax)
3 2 TABLE OF CONTENTS
DUFFIN HEIGHTS DEVELOPERS GROUP
COST SHARING AGREEMENT
Article Description Page No.
1 Definitions 2
2 Schedules 9
2.1 Agreement Reference 9
2.2 List of Schedules 9
2.3 Consulting Engineer's cost sharing schedules subject 10
to ongoing adjustments
3 Intent and General Obligations 10
3.1 Participating Owners . to contribute to Community 10
Land and Community Services for the benefit of all
lands within Duffin Heights
3.2 Shared servicing costs are categorized as Community 10
Services and payment obligations to be based on
benefit received from Community Services
3.3 Over-dedication in Community Services may be 10,
Offset Against Under-dedication in Community Land
and Vice Versa, except for front ending obligations
and accounting for indexing of Community Services
Costs
3.4 Participating Owners to contribute towards Historical 11
Administrative Costs and Administrative Costs
3.5 Trustee shall maintain separate accounts for the 11
Historical Administrative Costs, the Owner-
Constructed Core Services, the Region-Constructed
Core Services, the combined Community Services
and Community Land account, as well as for the
Community Land revenue
3.6 Costs . shared on a Participating Owner's 11
Proportionate Share and Participating Owner's
Proportionate Servicing Share basis, as applicable
3.7 Participating Owners to pay Local Share of 11
Community Services
3.8 Calculations for determining Participating Owner's 12
Proportionate Servicing Share of Costs Shared
Community Servicing Costs .
3.9 Determination of what constitutes oversized services 14
l
3.10 Participating Owners to be credited for excess 15 1. J 3
contributions as Non-Participating Owners become
Added Parties
3.11 Participating Owners to co-ordinate development, 15
proceed expeditiously and in good faith
3.12 Participating Owners will seek draft plan condition 15
requiring that they be in good standing pursuant to
this Agreement, the Region's Front-Ending
Agreement and the William Jackson Agreement, if
applicable, to register and shall seek draft plan
condition or other Development condition requiring
participation by Non-Participating Owners
3.13 Participating Owners will support and facilitate 16
Development of other Participating Owners and will
not appeal Development applications that comply
with the Neighbourhood Plan
3.14 Administrative Costs payable on cash call basis and 18
adjustments for Historical Administrative Costs to be
paid upon execution of Agreement
3.15 No. Participating Owner shall sell land to purchaser 18
unless purchaser agrees to be bound by Agreement
3.16 Participating Owners to enter into separate 18
arrangements for part block or lot exchanges
3.17 Community Servicing Costs completed by 18
Participating Owner to include soft costs fee equal to
20% of hard costs
3.18 Community Servicing Costs which are. subject to a 18
Development. Charge credit or recovery, but which a
constructing Participating owner cannot obtain
through a Development Charge credit or recovery
within established period of time, shall be pooled
3.19 Participating Owners accept land uses in 21
Neighbourhood Plan
3.20 Release by Trustee for registration or final 21
Development approval contingent upon compliance
with private agreements where Trustee so directed
3.21 Participating Owner released for registration or final 21
Development approval when obligations pursuant to
Agreement satisfied but will be released from
Agreement only after Community Services assumed
Community Land dedicated
3.22 Participating Owners responsible for sharing park 21
costs associated with the Master Parkland
Agreement
3.23 Participating Owners to enter into Region's Front 21
Ending Agreement or satisfy obligations is an Added
1 3 4 Party
3.24 Participating Owners with Benefiting Land for the 26
Services Associated with the Implementation' of
Brock Road Reconstruction and related stormwater
management facilities shall front-end costs upon
receipt of notification by Trustee
3.25 Participation in and compliance with the William 26
Jackson Agreement a requirement for release from
this Agreement for all parties benefiting-landowners
3.26 Pickering shall not have' any obligations under this 27
Agreement other than for the Pickering's SWM 4
Obligations
3.27 ORC's purchaser to be bound by all terms contained 27
in this Agreement for all Participating Owners other
than Pickering
4 Community Services and Community Land 27
A Community Services 27
4.1 Participating Owners responsible for constructing 27
Community Services and Local Services on their
lands in compliance with the ESP, co-ordinating
with other Participating Owners and incorporating in
subdivision agreement
4.2 Participating Owners to provide certification from 28
their professional engineer regarding Community
Servicing compliance and cost confirmation which is
to be certified by Consulting Engineer
4.3 Reconciliation of allocations and schedules to take 28
place at each registration and until all Community
Services assumed and Community Land disposed of
4.4 Retainer of. Consulting Engineer to design, tender or 28
supervise service construction
B Community Land 28
4.5 Community Services may be deleted from 29
Agreement where contribution can be achieved from
Non- Participating Owners through development
charges legislation
4.6 Easements and transfers of Community Land for 29
Community Services to be granted upon request or
upon registration or final approval of Development
Plan
4.7. Committee, to direct Trustee respecting sale of 30
Community Land and net proceeds distributed in
accordance with Benefiting Owner's Proportionate
Share
4.8 Method for calculating value of Community Land 31.
contributions
f - C
4.9 Undercontribution or overcontribution of 31 35
Community Land to be determined on phase by
phase basis for Development within a Participating
Owner's Lands
4.10 Community Land transfers recognized upon 31
completion or alternative arrangements are made in
accordance with Agreement
4.11 Periodic Adjustments 31
C Accounts - Administration and Security 32
4.12 All under-dedicated Owners except ORC to provide 32
security or certified funds for estimated Under-
dedication in Community Land and Community
Services on registration or final approval of
Development Plan or individual phases thereof
4.13 Trustee to repay Over-dedicated Owners' 32
entitlement in order of registration or final approval
of Development Plan or individual phases thereof,
as applicable
4.14 Participating Owners to deliver Development Plan, 32
surveyor's certificate, cost submission, statement of
obligations from Consulting Engineer prior to
Trustee authorizing release for registration
4.15 Participating Owner to provide solicitor's certificate 33
confirming transfer of Community Lands prior to or
simultaneously with registration
4.16 Trustee to provide release letter to Municipality upon 33
satisfaction of requirements in Agreement
4.17 All estimates to be finally revised on assumption of 34
Community Services and confirmation of
Developable Areas and adjustments for Community
Services Costs to be payable after registration on .
cash call basis
4.18 Consulting Engineer shall prepare draft certificate 34
upon request of Participating Owner.
4.19 Draft certificate to be provided to Participating 34
Owner for review and possible submission to
arbitration
4.20 Draft Certificate becomes final 9 Business Days 34
following delivery to Participating Owner if no
dispute
4.21 Participating Owner entitled to receive payment for 35
over-dedication when all provisions of Agreement
complied with but no Participating Owner shall be
entitled. to collect more than its ultimate Over-
dedication
4.22 No payments to be made until Consulting Engineer 35
certifies costs
136
5 Trustee 35,
5.1 Functions 35
5.2 Special Functions 35
5.3 Books of Accounts 36
5.4 Access to Accoutns 36
5.5 Trustee's fees 36
5.6 Financial risk of Trustee 36
5.7 Resignation of Trustee 36
5.8 Liability of Trustee 36
5.9 Indemnity of Trustee 37
5.10 Reporting 37
6 Consulting Engineer 37
6.1 Functions 37
6.2 Duties 37
. 6.3 Consulting Engineer's fees 38,
6.4 Liability of Consulting Engineer 38
6.5 Resignation of Consulting Engineer 38
6.6 Indemnity of Consulting Engineer 38
7 The Committee 39
7.1 Composition and duties of Committee 39
7.2 Voting rights 39
7.3 Quorum is majority of votes eligible to be cast 39
7.4 Committee members may vote by instrument of 39
proxy. and each Participating Owner shall provide a
list of persons authorized to act on its behalf to the
Committee
7.5 With limited exceptions, all Committee decisions are 40
made by votes representing at least 70% of the total
Developable Acreage and at least three Participating
Owners
7.6 Committee's administrative functions may be 40
performed by two ore more Committee Members
7.7 Committee meetings may be called by any 40
Committee Member provided adequate notice given
7.8 Decisions in writing by all Participating Owners 40
binding
137
7.9 Meeting of Committee Members to be kept and 40
distributed
8 Dispute Resolution 41
8.1 Negotiation 41
8.2 Mediation 41
8.3 Arbitration 41
8.4 Procedure for settling disputes 41
9 General Provisions 42
9.1 Capacity and Indemnity 42
9.2 Defaulting Participating Owners 42
9.3 Defaulting Participating Owner's rights restored upon 43
curing of default
9.4 Added Parties and potential purchasers 43
9.5 Some Participating Owners may have entered into 44
related Agreements, amendments by unanimous
consent only
9.6 Notices 44
9.7 Registration of Notice of Agreement 44
9.8 Time of the Essence 44
9.9 No Partnership 45
9.10 Agreement may be executed in counterpart 45
9.11 Agreement to be binding despite anticipated
adjustments
9.12 Covenants run with the Participating Owner's Lands 45
9.13 Agreement binding on signatories 45
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138
DUFFIN HEIGHTS DEVELOPERS GROUP COST SHARING AGREEMENT
THIS COST SHARING AGREEMENT dated the ~a day of c~ 2010.
BETWEEN:
MATTAMY (BROCK ROAD) LIMITED
(hereafter referred to as "Mattamy")
and
COUGS (TILLINGS) LIMITED
(hereafter referred to as "Cougs-Tillings")
and
COUGS (DERSAN) LTD.
(hereinafter referred to as "Cougs-Dersan")
and
COUGS (BROCK ROAD) LTD.
(hereinafter referred to as "Cougs-Brock Road")
and
ONTARIO REALTY CORPORATION as agent on behalf of HER MAJESTY THE
QUEEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF
ENERGY AND INFRASTRUCTURE
(hereafter referred to as "ORC")
and
LEBOVIC ENTERPRISES LIMITED
(hereafter referred to as "Lebovic")
and
THE CORPORATION OF THE CITY OF PICKERING
(hereafter referred to as "Pickering")
and
DUFFIN HEIGHTS LANDOWNERS GROUP INC.
(hereafter referred to as the "Trustee")
Recitals
A.. Mattamy, Cougs-Tillings, Cougs-Dersan, Cougs-Brock Road, ORC, Lebovic and
Pickering are the owners of the lands within the ownership limits are described at
Schedule "A-1" and depicted on Schedule "A-2" or have the authority to bind the
legal owners of the respective land holdings.
B. Each of Mattamy, Cougs-Tillings, Cougs-Dersan, Cougs-Brock Road and
Lebovic is a corporation incorporated under the laws of the Province of Ontario,
and together with ORC and Pickering are collectively referred to as the "Group"
or "Participating Owners" and individually referred to as a "Participating Owner";
C. The lands owned by members of the Group are located in an area within the City
of Pickering described as "Duffin Heights", the limits of which are depicted on
Schedule "A-2";
D. Duffin Heights is the subject of a neighbourhood plan for Duffin Heights being
neighbourhood 15 as may be amended from time to time pursuant to the ESP
process or otherwise (the "Neighbourhood , Plan"), which provides for the
regulation and use of land for residential, recreational and community purposes;
E. The Participating Owners seek to . share the costs and co-ordinate the
construction obligations associated with the . public land and infrastructure
I
Page - 2 -
139
required in order for development to proceed within Duffin Heights through the
execution of this Agreement;
F. Pickering is entering into this Agreement for the sole purpose of sharing in the
costs related to the construction of the stormwater management facility and
related stormwater management infrastructure that will be required in conjunction
with the services depicted on Schedule "B-1" as SWM 4 which will benefit land
within Duffin Heights that is owned by Pickering, as determined by the Consulting
Engineer in accordance with subsections 1.1(n), 1.1(q), 3.8(A) and 3.26, but
excluding any maintenance costs following the construction of same until
municipal assumption ("Pickering's SWM 4 Obligations");
G. Each Participating Owner has agreed to accept the land uses provided for in the
Neighbourhood Plan, except for ORC, in reliance upon the rights and obligations
that this Agreement will confer and impose on the Group, as well as other owners
of land within Duffin Heights who are presently not parties to this Agreement;
The parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 In this Agreement and the attached Schedules, the words and expressions listed
in this Article shall have the meanings set out below. If a term in this Agreement
is capitalized but not defined, it shall have the meaning' attributed to it firstly in the
Neighbourhood Plan , and failing that, in the Municipality's by-laws affecting
Duffin Heights:
(a) Accounting Terms applicable to Community Services calculations are,
(i) "Approved Cost" refers to that cost incurred by a Participating
Owner, and certified by the Consulting Engineer with respect to a
Community Service constructed on such Participating Owner's Lands,
constructed by a Participating Owner on another Participating Owner's
Lands by operation of subsection 3.13(c), or constructed on land
external to the Participating Owners' Lands;
(ii) "Credit" refers to the Estimated Cost or Approved Cost incurred by a
Participating Owner for a Community Service in excess of its
Participating Owners' Proportionate Servicing Share as determined by
the Consulting Engineer;
(iii) "Debit" refers to a Participating Owner's Proportionate Servicing
Share, as determined by the Consulting Engineer, of a Community
Service that has been provided by another Participating Owner;
(iv) "Estimated Cost" refers to the cost of providing all or a portion of a
Community Service, as estimated by the Consulting Engineer and
including a contingency of 15% for all costs that are not Approved
Costs;
(b) "Acreage Land Value" shall mean $300,000.00, or as agreed to by the
Committee, which represents, the value, on a per acre basis of Community Land
or such other amount as determined by the 'Participating Owners pursuant to
Section 4.11
(c) "Adaptive Fund Contribution" means the sum of $40,000.00 to be paid by the
Group to the Municipality to be used, in consultation with the Toronto and Region
Conservation Authority, at the Municipality's sole discretion to address any post
development impacts on any terrestrial and subsurface and surface water post
development conditions determined through either the Toronto and Region
Conservation Authority and/or individual development undertakings of
Participating Owners.
(d) "Added Party" means an owner of Benefiting Lands who is not an original party
to this Agreement but who agrees to be bound to this Agreement's terms and
conditions at a future date as a successor in title to a Participating Owner or as a
Non-Participating Owner and "Added Parties" shall mean more than one Added
Party.
Page - 3 -
140
(e) "Administrative Costs" means the costs approved by the Committee as having
been incurred for the benefit of all Participating Owners, including but not limited
to consulting, surveying, legal, engineering and other professional costs and
including,
(1) any monies paid by the Participating Owners following the execution of
this Agreement for consultants, advisors or professional personnel to
be retained by the Participating Owners or the Trustee in connection
with the implementation and administration of this Agreement and the
NeighbourhoodPlan,.subject to the prior approval of the Committee,
and
(ii) costs associated with the Trustee, Consulting Engineer and any other
consultants retained by the Committee to carry out the intent and
purpose of this Agreement.and includes without limitation the fees
charged by them, costs of solicitors engaged by the Committee or the
Trustee and the costs of any accountant engaged by the Trustee.
(f) "Agreement" means this agreement and all attached schedules.
(g) "Approval Authority" means the Municipality, the Region, the Toronto and
Region Conservation Authority, the Ontario Municipal Board or other government
entity or agency, as the case may be.
(h) "Benefiting Lands" means Developable Acreage within the area determined by
the Consulting Engineer to be benefiting from any category of Community
Services or Community Land;
(i) "Benefiting Owner" means the owner of Benefiting Lands, including
Participating Owners and Non-Participating Owners;
Q) "Benefiting Owners Proportionate Share" refers to that proportion which a
Benefiting Owner's Developable Acreage bears to the total Developable
Acreage within Duffin Heights,
(k) "Benefiting Owner's Proportionate Servicina.Share" refers to the proportion
of the cost of each Community Service that is to be bome by a Benefiting Owner .
based upon the extent to which a Benefiting. Owner derives a benefit therefrom in
relation to the benefit derived by all Benefiting Owners, as determined by the
Consulting Engineer in accordance with the principles set out in this Agreement;
(1) "Business Day" means any day other than a Saturday, Sunday or statutory
holiday in the Province of Ontario;
(m) "Committee" means the committee of Participating Owners established in
accordance with Article 7.
(n) "Community Land" refers to those portions or parcels of Developable Acreage
or other land specifically identified below that is within the Neighbourhood Plan,
for or for use as:
(i) an easement which is not located within a setback defined in the
applicable zoning by-law, which prevents the use of the lands which
could have been made if such easement did not exist, and which is
required for the construction of a Community Service (but for greater
cer tainty, shall not include any temporary easements to be granted in
connection with the construction of a Community Service);
(ii) storm water management facilities, worlds and devices whether Iodated
on Developable Acreage or land that is not Developable Acreage,
including detention ponds, headwalls, and overflow weirs, inlet and
outlet structures, fencing and guard rails associated with storm water
management ponds, maintenance access roads, landscaping and low
flow channels;
(iii) Community Roads;
(iv) Schools;
Page - 4 -
(v) parks for which a credit is provided by the Municipality pursuant to the . 141
Planning Act ;
(vi) pumping stations and associated land requirements including, but not
limited to access roads;
provided that,
(A) Participating Owners shall be required to design the subject land
requirements in the most efficient manner possible, with a determination
respecting the total land credit to be finally determined by the Consulting
Engineer in accordance with Section 4.8, and
(B) if any grading that is not specifically identified as a Community Servicing
Cost, adverse soil rectification or environmental remediation is required
by an Approval Authority for Community Land, then same shall be done
by the Participating Owner and not by the. Group, the intention being that
such costs are not a Community Servicing Cost, nor will they be subject
to any adjustment of the Acreage Land Value paid for Community Land.
(o) "Community Roads" means 50% of any road that is Developable Acreage and
abuts on one side or up to 100% of any road that is Developable Acreage and
abuts on both sides of Natural Heritage System Lands or Community Land
including cul de sacs which terminate at Community Land and Natural Heritage
System Lands and, notwithstanding the foregoing, shall also include 50% of any
portion of William Jackson Drive (including all reserves) which abuts lands owned
by a Participating Owner and is situated between the northern boundary of
Mattamy's Participating Owners Lands and the northern limit of Part 1 on Plan
40R-25818.
(p) "Community. Services" refers to any work, service or facility located within
Duffin Heights that benefits more than one Participating Owner, as described in
subparagraph 1.1(q) but only if required by an Approval Authority and without
duplication;
(q) "Community Servicing Cost" or "Community Services Costs" refers to the
following but and only to the extent to which the cost of the work, service or
facility is not subject to full recovery through a Development Charge recovery or
credit or through other payments or reimbursements from an Approval Authority:
(i) The total cost incurred for the construction . of Community Roads,
including the Local Services constructed within Community Roads in
the same percentage as they are cost shared in accordance with
subsection 1.1(0) including toad base preparation, granulars, curbs,
sidewalks, medians, paving, berming, planting strips, pedestrian
crossings, illumination;
(ii) The cost incurred for temporary and permanent stormwater
management facilities (including all ponds, works and devices) if same
are utilized by. a Benefiting Owner, including all excavation costs,
earthworks associated with the grading of detention ponds, the
transportation and placement of fill material in accordance with Section
3.8(G), headwalls, and overflow weirs, inlet and outlet structures and
fencing and guard rails associated with stormwater management
ponds, maintenance access roads, landscaping, mitigation and
rehabilitation measures stipulated by an Approval Authority, topsoil
and seeding, sodding, sediment clean out, low flow channels,
monitoring and maintenance until the assumption of the stormwater
management ponds by the Approval Authority and perpetual
maintenance costs imposed by an Approval Authority;
(iii) The cost of increased depth and oversizing watermains other than the
Looped Watermain, storm, and sanitary sewers and perpetual
maintenance costs imposed by an Approval Authority;
(iv) The total cost of the Looped Watermain;
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142
(v) The entire cost of the clean water pipe and associated water quality
facilities (including, without limitation, any OGS or bio-swales required
by any Approval Authority) to be constructed within Duffin Heights;
(vi) The cost of work required within easements granted to an Approval
Authority where it benefits more than one Participating Owner;
(vii) Land transfer tax and all other costs required as a result of the transfer
or mortgaging of Community Land blocks from a Participating Owner to
the Trustee, management of Community Land while in.the ownership
of the Trustee or subject to a mortgage in favour of the Trustee,
including but not limited to realty taxes, insurance, property
maintenance and the disposition-related costs of the subject lands;
(viii) Dewatering costs (if encountered) for oversized infrastructure with
such costs to be shared between the local and over-sized components
proportionate to costs of each unless the depth for over-sized servicing
is the cause of dewatering in which case all dewatering costs will be
attributable to over-sizing;
(ix) Fencing, seeding and topsoiling of. Community Land to satisfy the
requirements of an Approval Authority prior to the registration or final
approval of a Development Plan and transfer to an Approval Authority;
(x) Creek improvement costs to the extent that they are included in the
ESP and approved by the appropriate Approval Authority including all
works within or abutting the creek, including but not limited to,
excavation, grading, removal of in-creek fisheries obstacles,
geomorphologic rehabilitation and re-vegetation, exclusive of any
works associated with any storm water management facility;
(xi) Sanitary pumping station costs including forcemain to Brock Road and
gravity sanitary sewer on Dersan Street from Brock Road to the
Central Duffin Collector sewer;
(xii) The costs of oversiiing of storm sewers and related appurtenances
required to be constructed by a Participating Owner that benefits
another Participating Owner or Non-Participating Owner;
(xiii) Park improvement costs provided that same shall not exceed the
Development Charge recoveries or credits available from the
Municipality unless prior approval is obtained from the Committee;
(xiv) The Adaptive Fund Contribution;
(xv) The Monitoring Cost Contribution;
(xvi) The costs of Services Associated with the Implementation of Brock
Road Reconstruction after deductions for recoveries from the Region
and/or the Municipality and any cost directly attributable to a
Participating Owner(s);
(xvii) A fixed contribution of $100,000.00, if required, to be applied to the
cost of the construction of a trail connection from the stormwater
management pond located on Mattamy's lands to the urban boundary
of Pickering (at Ajax), as depicted on Schedule "I", which is to be made
by the Participating Owners at such time as when the Municipality's
Development Charge By-law is amended to include said trail
connection;
(xviii) The net cost for the acquisition of lands owned by Hydro One Inc.
within Duffin Heights, as required in order to complete the construction
of the stormwater management facility known as SWM 4, and which
shall also include a fixed contribution of Two Thousand Six Hundred
and Twenty-Five ($2,625.00) Dollars as required by the encroachment
agreement that shall be entered into between the Region of Durham
and Hydro One Inc;
Page - 6 -
143
(xix) To the extent not included in subsections (i) to (xviii) and (xx) and (xxi),
the costs of all services to be constructed pursuant to the Region's
Front-Ending Agreement, whether they, are Region-Constructed Core
Services or Owner-Constructed Core Services, including, without
limitation, any non-recoverable component. of the Central Duffin
Collector sewer as well as any increase in those costs attributable to
an Added Party pursuant to Section 3.23;
(xx) The total cost of water balancing and water infiltration infrastructure as
required by the ESP; and
(xxi) Costs incurred for purposes of delivering school sites to a school board
including grading, perimeter fencing and catch-basins, if required, but
excluding those costs identified in subsection 1.1(n)(B).
(r) "Consulting Engineer" refers to the firm of The Sernas Group or the
replacement thereof as may be approved by the Committee.
(s) "Developable Acreage" refers to that acreage within Duffin Heights as
determined by the Consulting Engineer by subtracting from the gross area of the
Duffin Heights development boundary, the area of Natural Heritage System
Lands and land owned by a Non-Participating Owner and "Developable Acre"
shall mean one acre of Developable Acreage.
(s) "Development" means carrying through such process as is required to permit
the land referred to be used other than for its present use, an intensification or
change to an existing designation or for greater than its present density and
includes registration of a plan of subdivision, plan of condominium, land division
approvals, site plan approval and obtaining a building permit. Developed,
Develops, Developing and other such words have similar meanings but
Development does not include servicing;
(t) "Development Charge" means a charge payable to the Municipality or the
Region pursuant to a by-law(s) duly passed by the Municipality and/or the Region
pursuant to the Development Charges Act, as amended from time to time.
(u) "Development Date" means the time of registration of a Development Plan by a
Participating Owner, or for any particular Development Plan phases thereof, or
the achievement of another Development milestone as determined by the
Trustee.
(v) "Development Plan" means any plan or approval by which any portion of the
lands within Duffin Heights is approved for subdivision or for a use other than its
present use, an intensification or change in an existing designation or for greater
than its present density and includes a plan of subdivision, plan of condominium,
land division, site plan approval and a building permit, provided that it is possible
to service the subject land and building permits are available upon the
completion of such services.
(w) "Duffin Heights" means that area within the Neighbourhood Plan, which is
depicted in Schedule "A-2" to this Agreement.
(x) "ESP" means the environmental servicing plan that has been approved by an
Approval Authority as same may be amended and approved by an Approval
Authority from time to time.
(y) "Group" means all of the Participating Owners that execute this Agreement and
all future Added Parties.
(z) "Historical Administrative Costs" means those amounts set out in Schedule
"A-4" and those amounts paid by the Participating Owners prior to the date of this
Agreement with respect to, engineering work completed by the Consulting
Engineers, the trustee services provided by the Trustee and legal services
provided by legal counsel retained by the Group, all in relation to the preparation
and negotiation of this Agreement.
(aa) "Interest Rate" means the prime rate of interest established from time to time by
the Canadian Imperial Bank of Commerce for its best commercial customers in
Toronto.
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1 4 4 (bb) "Letter of Credit" refers to a letter of credit unconditionally and irrevocably
issued by one of the major chartered Canadian banks on behalf of a Participating
Owner which bears the form and wording set forth in the specimen form attached
hereto as Schedule "D".
(cc) "Local Road" refers to the total road allowance on any Development Plan
excluding Community Roads.
(dd) "Local Services" means,
(i) Local Roads,
(ii) Watermains, Storm and sanitary sewers excluding the oversizing
components described at Section 3.9 and excluding Community
Services to be cost shared as contemplated in this Agreement;
(iii) All other services that are constructed within or adjacent to a
Participating Owner's lands within Duffin Heights that a Participating
Owner is required to construct in order to develop its Participating
Owner's Lands and, in connection with which, only that Participating
Owner is a Benefiting Owner,
and the Consulting Engineer shall establish, on each anniversary date of this
Agreement, a cost table applicable to Local Services that will establish the cost of
Local Services to guide its determination of oversizing costs for cost claims and
schedule updating purposes.
(ee) "Local Share" means either,
(1) 100% where the Consulting Engineer has determined that a Local
Service and/or Local Road benefits one Participating Owner only, and
(ii) 50%0 or such other appropriate percentage which the Consulting Engineer
has determined benefits two or more but not all Participating Owners of a
Local Service and/or a Local Road.
(if) "Looped Watermain" means the watermain system to be constructed within.
Duffin Heights as depicted on Schedule "B-1" that is deemed to benefit those
lands outlined on Schedule "B-1".
(gg) "Master Parkland Agreement" means the agreement to be entered into
between the Municipality and the Participating Owners and relates to the
obligations of landowners within Duffin Heights to dedicate parkland in
accordance with the Planning Act.
(hh) "Monitoring Cost Contribution" means the sum of $100,000.00 to be provided
to the Toronto Region Conservation Authority as provided for in the approved
ESP to provide for the monitoring of terrestrial and subsurface and surface water
post development conditions.
(ii) "Municipality" refers to the City of Pickering in its.capacity as a municipality in .
the Durham Region, in the Province of Ontario, and not in its capacity as a
Participating Owner.
(jj) "Natural Heritage System Lands" refers to those lands that are located within
Duffin Heights, as generally depicted at Schedule "B-2", that are in the opinion of
the Consulting Engineer not suitable for Development based upon the provisions
of the ESP as same may be amended from time to time, as well as associated
buffers that are required by an Approval Authority.
(kk) "Neighbourhood Plan" has the meaning set out at Recital D.
(ll) "Non-Participating Owner" refers to an owner of Benefiting Lands who is not a
party to this Agreement, and may also be used to refer to the Benefiting Lands of
such owners, as the context indicates.
(mm) "Over-dedicated Owner" refers to that Participating Owner whose area of
Community Land and the value of the Community Service contributions exceed
its combined Participating Owner's Proportionate Share of Community Land
L
Page - 8 - 14 5
obligations and Participating Owner's Proportionate Servicing Share of
Community Services requirements pursuant to this Agreement. The amount of
such excess is the over-dedication.
(nn) "Owner-Constructed Core Services" means those regional spine services that
are required in order for land within Duffin Heights to develop including but not
limited to the design and construction of the Zone II Water Booster Station, the
sanitary pumping.station, forcemain and gravity sanitary sewer on Dersan Street
included within Regional Commissioner of Works Reports 2007-W-95 and 2008-
W-62 and any portion of the Central Duffin Collector Sewer constructed by a
Participating Owner.
(oo) "Participating Owners" refers to Mattamy, Cougs-Tillings, Cougs-Dersan,
Cougs-Brock Road, ORC, Lebovic and Pickering, and other Added Parties and
Participating Owner shall mean any one of them, provided that:
(i) A Participating Owner that is comprised of more that one entity but
which share common management and control shall be treated as-one
party and each member of such party shall be jointly and severally
responsible for the performance and obligations of such Participating
Owner;
(ii) Corporations which are Participating Owners and that are related,
affiliated or associated shall be treated as a single Participating Owner
(as a result, Cougs-Tillings, Cougs-Derson and Cougs-Brock Road
shall be treated as a single Participating Owner);
(iii) Pickering shall only be deemed to be a Participating Owner in relation .
to Pickering's SWM4 Obligations and its rights and responsibilities
shall be limited to the express terms contained in Section 3.26 ; and
(iv) an entity that is related to, an affiliate of, or an associate of a
Participating Owner and that becomes an owner of Benefiting Lands,
including an entity that becomes an owner of Benefiting Lands
currently owned by Pickering or ORC, shall be deemed to be a.
Participating Owner as of the date on which it became such an owner
and, 'as requested by the Trustee, shall execute an agreement
confirming its agreement to be bound by this Agreement and any
subsequent amendments as a Participating Owner.
(pp) "Participating Owners' Lands" refers to those lands within Duffin Heights that
are owned by Participating Owners from time to time, and that are included in the
calculation of the Developable acreage.
(qq) "Participating Owner's Proportionate Servicing Share" refers to. the
proportion of the cost of each Community Service that is to be bome by a
Participating Owner based upon the extent to which a Participating Owner
derives. a benefit therefrom in relation to the benefit derived by all Participating
Owners or, as applicable, all Benefiting Owners, as determined by the Consulting
Engineer in accordance with the principles set out in this Agreement.
(rr) "Participating Owner's Proportionate Share" refers to that proportion which a
Participating Owner's total Developable Acreage in Duffin Heights bears to the
total Developable Acreage in Duffin Heights that is owned by all Participating
Owners, provided that
(A) in relation to Community Roads that provide frontage for stormwater
management facilities, only the Developable Acreage of the Participating
Owners who are tributary to the facility shall be included in the
calculation, and
(B) in relation to stormwater management facilities the proportion shall be
calculated in accordance with the formula set out at subsection 3.8(A).
(ss) "Pickering's SWM 4 Obligations" shall have the meaning set out at Recital F.
(tt) "Planning Act" means the Planning Act, R.S.O. 1990, c. P.13, as amended.
(uu)"Region" means the Regional Municipality of Durham;
Page - 9 -
1 4 6 (vv) "Region Constructed Core Services" means the portion of the Central Duffin
Collector sewer that is constructed by the Region and is required for land within
Duffin Heights to Develop,
(ww) "Region's Front-Ending Agreement" shall have the meaning set out at Section
3.23 herein;
(xx) "Services Associated with the Implementation of Brock Road
Reconstruction" means any services excepting the SWM 4 Works (design,
construction, long term maintenance or otherwise), whether implemented by a
Participating Owner(s) or the Region, that are required by an Approval Authority
and associated with the implementation of the reconstruction or urbanization of
Brock Road, including, but not limited to, sanitary and storm sewers, watermains,
clean water pipes and any associated appurtenances.
(yy) "Services Associated with the Implementation of Street A / William Jackson
Drive Construction" means any services (design, construction, long, term
maintenance or otherwise) that are required to construct the collector road known
as Street A / William Jackson Drive, including, but not limited to, sanitary and
storm sewers, watermains, clean water pipes and any associated
appurtenances, as provided for in the William Jackson Agreement.
(zz) "SWM 4 Works" means the stormwater management facility and related
stormwater management infrastructure that will be required in .conjunction with
the services depicted on Schedule "B-1" as SWM 4.
(aaa) "Trustee" refers to Duffin Heights Landowners Group Inc. and the replacement
thereof as may be approved by the Committee from time to time.
(bbb) "Under-dedicated Owner" refers to a Participating Owner whose Community
Land and Community Service . contributions are less than its combined
Participating Owner's Proportionate Share of Community Land and Participating
Owner's Proportionate Servicing Share of its Community Service obligations
pursuant to this Agreement. The amount of such shortfall is the underdedication.
(ccc) "Unit" means a residential dwelling unit.
(ddd) "William Jackson Agreement" means an agreement among Lebovic, ORC,
Mattamy and Non-Participating Owners adjacent to the future William Jackson
Drive regarding the dedication and construction of this collector road.
ARTICLE 2
SCHEDULES
2.1 This Agreement may be referred to as the Duffin Heights Developers Group Cost
Sharing Agreement. The Schedules referred to in this Agreement shall be
deemed to form part of this Agreement.
2.2 The Schedules to this Agreement are as follows:
Schedule "A-1" Legal Descriptions and assigned Property Identifier Numbers
for all Participating Owners' Lands
Schedule "A-2" Plan Depicting Participating Owners' Lands within Duffin
Heights
Schedule "A-3" Contact information for all Participating Owners and the
Trustee
Schedule "A-4" Reconciliation of Historical Administrative Costs
Schedule "13-1" Plan Depicting Location of Community Services
Schedule "B-2" Plan Depicting Location of Community Land
Schedule "C" Consulting Engineer's Cost Sharing Schedules
Schedule "D" Letter of Credit Form
Page; 10 - 14 7
Schedule "E". Mediation Rules
Schedule "F" Arbitration Rules
Schedule "G" Terms of Reference for Determining Acreage Land Value
Schedule "H" Front Funded Owner-Constructed Core Services as per as
per Region's Front-Ending Agreement
Schedule "I" Plan depicting Trail Extension from the stormwater
management pond located on Mattamy's lands to the urban
boundary of Pickering (at Ajax)
2.3 Consulting Engineer's cost sharing schedules subject to ongoing
adjustments
The data indicated in the Consulting Engineer's cost sharing schedules, which
are collectively referred to as Schedule "C" pursuant to this Agreement, are
intended to indicate the manner in which the.principles set out in this Agreement
are to be implemented. However, it is intended that all details in Schedule "C"
shall be subject to variation, consistent with the principles contained in this
Agreement, as exact data becomes available during the course of Development
and it is expressly intended that the principles set out in this Agreement shall
prevail over the schedules produced by the Consulting Engineer from time to
time. All such variances shall be made as required by the Consulting Engineer
and shall be effective without further agreement of the Participating Owners
where those changes reflect actual costs incurred, provided that the Consulting
Engineer shall be responsible for providing written notification of all changes to
the Schedules to the Participating Owners forthwith upon amendment. Any
proposed amendment to the methodology to be followed in preparing the
Schedules shall be made only if an amending agreement is executed by all of the
Participating Owners, which have not been released pursuant to this Agreement.
ARTICLE 3
INTENT AND GENERAL OBLIGATIONS
3.1 Participating Owners to contribute to Community Land and Community
Services for the benefit of all lands within Duffin Heights
The Participating Owners have agreed to dedicate Community Land and
construct the Community Services on behalf of all Benefiting Owners to allow for
the development of all lands within Duffin Heights.
3.2 Shared servicing costs are categorized as Community Services and
payment obligations to be based on benefit received from Community
Services
In order to develop Duffin Heights, it is necessary to construct certain services,
defined as Community Services, the costs of which are shared pursuant to this
Agreement. Community Servicing Costs are allocated on the basis of the benefit
each Participating Owner derives from each Community Service, as determined
by the Consulting Engineer and in accordance with the principles contained in
this Agreement and represented by each Participating Owner's Proportionate
Servicing Share.
Each Participating Owner is required to pay all costs for the Local Services
constructed within its Participating Owner's Lands, save and except where a
Participating Owner constructs a Local Service that is immediately adjacent to
another Participating Owner's Lands, in which case the provisions of Section 3.7
shall, apply. On each anniversary date of this Agreement, the Consulting
Engineer will prepare a Local Share cost table applicable to Local Services that
will establish the cost of Local Services to guide its determination of Community
Servicing Costs for cost claims and schedule updating purposes.
i
148 Page - 11 -
3.3 Over-dedication in Community Services may be Offset Against Under-
dedication in Community Land and Vice Versa, except for front ending
obligations and accounting for indexing of Community Servicing Costs
It is recognized that some of the Participating Owners will over contribute with
respect to. Community Servicing Costs, as determined by the Participating
Owner's Proportionate Servicing Share. Similarly, it is anticipated that some
Participating Owners will over contribute with respect to Community Lands, as
determined by the Participating Owner's Proportionate Share. An over
contribution in either Community Servicing Costs or Community Lands may be
offset by an under contribution in either Community Servicing Costs or
Community Lands by the same Participating Owner, except for any front-ending
obligation that may be required pursuant to the Region's Front-Ending
Agreement or the William Jackson Agreement for that portion of William Jackson
Drive which is not a Community Road and is subject to recovery from. adjacent
landowners pursuant to the William Jackson Agreement. Community Servicing
Costs incurred directly by a Participating Owner will be subject to increase based
on the Southam Construction Index applicable in the Province of Ontario from the
date the applicable Community Service is certified by a consulting engineer to be
substantially completed to the date compensation is paid by an Under-dedicated
Owner or credited against an under contribution in Community Land. The time
for. determination of such over or under contribution for each Development Plan
shall be the Development Date.
3.4 Participating Owners to contribute towards. Historical Administrative Costs
and Administrative Costs
Each Participating Owner covenants to pay its Participating Owner's
Proportionate Share of the Historical Administrative Costs and the Administrative
Costs that are incurred prior to the date each Participating Owner is released
from this Agreement by the Trustee and any default in payment pursuant to this
section shall be deemed to constitute a default pursuant to Section 9.2.
3.5 Trustee shall maintain separate accounts for the Historical Administrative
Costs, the Administrative Costs, the Owner-Constructed Core Services, the
Region-Constructed Core Services, the combined Community Services and
Community Land account, as well as for Community Land revenue
The Trustee shall maintain separate accounts for Historical Administrative Costs,
Administrative Costs, the Owner-Constructed, Core Services, the Region-
Constructed Core Services and the combined Community Services and
Community Land account as well as the revenue received on account of
Community Land dispositions.
The Historical Administrative Cost, the Administrative Cost and Owner-
Constructed Core Services accounts maintained by the Trustee shall incorporate
a reconciliation for any Goods and Services Tax payment which may be
.attributable to Participating Owners for payment or reporting purposes but all
Community Servicing Costs and the Total Community Land Costs to be shared
by the Participating Owners shall be exclusive of Goods and Services Taxes as
constructing Participating Owners shall undertake all required reporting for
Goods and Services Taxes.
3.6 Costs shared on a Participating Owner's Proportionate Share and
Participating Owner's Proportionate Servicing Share basis, as applicable
Each Participating Owner covenants and agrees to pay all costs associated
therewith, in accordance with the provisions of this Agreement for all land within
Duffin Heights it may own, for its:
(a) Participating Owner's Proportionate Share of the Community Land costs;
(b) Participating Owner's Proportionate Share of the Historical Administrative Cost
and the Administrative Costs; and
(c) Participating Owner's Proportionate Servicing Share of the Community Servicing
Costs,
Page - 12 -
14 9
as applicable, which shares shall be subject to amendment from time to time as
actual costs are determined, area(s) of Developable Acreage are confirmed and
this Agreement is amended by the inclusion of Added Parties.
3.7 Participating Owners to pay Local Share of Community Services
Each Participating Owner shall be responsible for all costs associated with the
Local Share of the Community Services constructed within its Participating
Owner's Lands, provided that:
(a) if a Participating Owner constructs or front-ends the cost of a Local
Service which is immediately adjacent to and . benefits another
Participating Owner's Lands, as determined by the Consulting Engineer;
or
(b) if a Participating Owner front-ends the cost of a Local Service through
another Participating Owner's Lands,
then the benefiting Participating Owner shall be responsible for compensating the
constructing Participating Owner in the amount determined by the Consulting
Engineer. However, unless expressly provided herein, the sharing of such costs
shall be undertaken directly between the Participating Owners involved and shall
not be reflected in the schedules to this Agreement.
3.8 Calculations for determining Participating Owner's Proportionate Servicing
Share of Cost Shared Community Servicing Costs
Other than oversizing costs (as defined in Section 3.9), the cost of Community
Services are to be shared in each instance as follows:
(A) Stormwater management facilities: Except for the SWM 4 Works, pro rata
.calculation applied to Participating Owners within a tributary drainage
area multiplied by the runoff co-efficient and based on a Participating
Owner's Developable Acreage to the total Developable Acreage of all
Participating Owners within that drainage area or stream corridor reach,
taking into account the runoff co-efficient of all Developable Acreage
within the service area of the pond. For the SWM 4 Works, the costs
associated with the tributary area owned by Non-Participating Owners
shall be shared by all Participating Owners based on each Participating
Owner's Developable Acreage as compared to the total Developable
Acreage of all Participating Owners. All Participating Owners that have
developable Acreage that is tributary to the SWM 4 Works shall also remit
payment for their Benefiting Owner's Proportionate Servicing Share of the
SWM 4 Works costs.
When stormwater major and minor flows are split, 75% of the costs for
the-split area will be attributable to the minor system flows and 25% to the
major system flows.
(B) Storm sewers and storm and sanitary sewer dewatering costs (if
encountered): The costs shall be allocated based upon that portion of the
costs of oversizing for each length of oversized sewers to each parcel of
Benefiting Land that is owned by a Participating Owner. Such allocation
shall be made on the basis of the area of Developable Acreage which
benefits and the extent to which each Participating Owner's Benefiting
Lands are tributary to or benefit from a particular length of sewer,
manhole or other sewer facility, taking into account the runoff co-efficient.
(C) Watermain oyersizing. Looped Watermain and watermain dewatering
costs (if encountered): Pro rata calculation applied only to Participating
Owners with Benefiting Lands based on a Participating Owner's total
Developable Acreage determined to be Benefiting Lands as a percentage
of all Participating Owners' Developable Acreage determined to be
Benefiting Lands. The Benefiting Lands for the Looped Watermain shall
include all land within Duffin Heights except for lands located south of the
first property ownership located along the southerly limit of Dersan Street,
as depicted on Schedule "B-1". Benefiting Lands for watermain
dewatering costs shall be determined on a proportionate unit count basis.
I
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1 5 0_ (D) Sanitary.Sewers including gravity sewer: The cost of deepening any
oversized sanitary sewer to the extent not covered by the Regions
oversizing policy included with the Development Charge "By-law,
calculated on the basis of the cost of the marginal deepening of the sewer
through a Participating Owner's lands to accommodate one or more
upstream Participating Owner's lands. The appor tionment of the cost
among the Participating Owners shall be made based on an allocation of
that. portion of the costs.which. are associated with the deepening and
oversizing of each length of oversized sewers to each parcel of Benefiting
Land that is owned by a Participating Owner. Such allocation shall be
-made on the basis of the total Developable Acreage which are tributary
to, or benefit from, a particular length of sewer, manhole or other sewer
facility, and the -extent to which each Participating Owner's total
Developable Acreage are tributary to, or benefit from, a particular length.
of sewer, manhole or other sewer facility.
(E) Pumping station and forcemain: Pro rata calculation applied only to
Participating Owners with Benefiting Lands based on a Participating
Owner's total Developable Acreage determined to be Benefiting Lands as
a percentage of all Participating Owners' Developable Acreage
determined to be Benefiting Lands by the Consulting Engineer.
(F) Community Roads (including the Local Services constructed within
Community Roads):. Pro rata calculation for the Developable Acreage of
each parcel of Benefiting Land to the total Developable Acreage of all
Benefiting Land. With the exception of Community Roads that front onto
stormwater management facilities, the Benefiting Land shall be all land
within Duffin Heights. Community Roads adjacent to stormwater
management facilities shall be apportioned in accordance with subsection
1.1(rr).
(G) Fill transport and placement costs for stormwater management ponds: As
each Participating Owner completes excavation work within stormwater
management pond areas, excess fill material from the pond work (i.e., fill
material not required by either the constructing Participating Owner or the
Participating Owner'on whose Land the construction is undertaken (the
"First Fill Owners")) will be made available to all other Participating
Owner's that are owners of Benefiting Lands at the time of pond/stream
corridor construction for stockpile or placement on their own lands should
they wish to receive the material. If there is more demand than available
fill, then it shall be shared on the same basis as the subject parties benefit
from the subject pond excluding the share of the First Fill Owners. If
transport or placement costs are incurred to satisfy this demand for fill,
the costs are the responsibility of the receiving Participating Owner. A
Participating Owner that owns Benefiting Lands may decline the fill
material but the cost to remove any unclaimed fill material will be borne
by all Participating Owners benefiting from the subject pond on the basis
of their respective Participating Owners Proportionate Share of the
subject pond. The constructing Participating Owner must notify all
Participating Owners that own Benefiting Lands of its intention to
construct the pond/stream corridor works a minimum of 5 months prior to
the construction. start. The Participating Owner that owns Benefiting
Lands, for its part, must deal with the fill issue on a timeline compatible
with the constructing Participating Owner's schedule otherwise such
Participating Owner will be deemed to have declined its portion of the fill
material. All disputes will be finally determined by the Consulting
Engineer.
(H) Adaptive Fund Contribution: Pro rata calculation applied to each
Participating Owner based . on that Participating Owner's total
Developable Acreage to the total Developable Acreage, of all Participating
Owners within Duffin Heights.
(1) Monitoring Cost Contribution: Pro rata calculation applied to each
Participating Owner based on that Participating Owner's total
Developable Acreage to the total Developable Acreage of all Participating
Owners within Duffin Heights.
J
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1 51
(J) Services Associated with the Implementation of Brock Road
Reconstruction excepting the SWM 4 Works: Pro rata calculation applied
to each Participating Owner based on that Participating Owner's total
Developable Acreage to the total Developable Acreage of all Participating
Owners within Duffin Heights.
(K) Region Constructed Core Services:
(i) Cost Associated with Federal Transport Lands for Central Duffin
Collector Sewer from Rossland Road to Dersan Street: Pro rata
calculation . applied to each Participating Owner based on that
Participating Owner's total Developable Acreage to the total
Developable Acreage of all Participating Owners within Duffin
Heights.
(ii) Cost Associated with Federal Transport Lands for Central Duffin
Collector Sewer from Dersan Street to the CPR Tracks: Pro rata
calculation for the Developable Acreage of each parcel of
Benefiting Land to the total Developable Acreage of all Benefiting
Land.
(iii) Oversizing Costs of Central Duffin Collector Sewer associated
with lands in Seaton Community: ORC to pay entire cost of
Central Duffin Collector Sewer oversizing associated with lands in
Seaton Community.
(iv) Central Duffin Collector Sewer costs south of Dersan Street (after
deducting costs associated with K(i) (ii) and (iii) above): Pro rata
calculation applied to each Participating Owner based on that
Participating Owner's total Developable Acreage to the total
Developable Acreage of all Participating Owners within Duffin
Heights.
(v) Central Duffin Collector Sewer costs north of Dersan Street (after
deducting costs associated with (K)(i), (ii) and (iii) above): Pro rata
calculation for the Developable Acreage of each parcel of
Benefiting Land to the total Developable Acreage of all Benefiting
Land.
(L) Clean water pipe and associated water quality facilities (including OGS
and bio-swales): Pro rata calculation applied only to Participating Owners
with Benefiting Lands based on a Participating Owner's total Developable
Acreage determined to be Benefiting Lands as a percentage of all
Participating Owners' Developable Acreage determined to be Benefiting
Lands by the Consulting Engineer based on contributing area and as set
out in Schedule "B-2"
(M) Water balancing and water infiltration infrastructure: Pro rata calculation
applied only to Participating Owners with Benefiting Lands based on a
Participating Owner's total Developable Acreage determined to be
Benefiting Lands as a percentage of all Participating Owners'
Developable Acreage determined to be Benefiting Lands by the
Consulting Engineer in a manner that is at all times consistent with the
ESP and as set out in Schedule "B-2".
(N) All Other Community Services Costs described in Section 1.1(g): Pro rata
calculation applied to each Participating Owner based on that
Participating Owner's total Developable Acreage to the total Developable
Acreage of all Participating Owners within Duffin Heights.
3.9 Determination of what constitutes oversized services
The Consulting Engineer shall determine where a Community Service constitutes
an oversized service and the amount to be paid for the increased cost arising
from the oversizing and the Consulting Engineer's determination shall be final
and binding on the affected parties, save and except for a manifest error. At the
writing of this Agreement, the Participating Owners agree that the following
constitute thresholds. for the oversizing of services:
C n2 Page - 15 -
1.5 2 Sewers Pipe larger than 675 millimetres in diameter and/or lower
than 3.5 metres at the invert depth based upon final
grade, plus manholes larger than 1500 mm diameter.
Sanitary Sewers Pipe larger than 250 millimetres in diameter and/or
deeper than 4.0 metres at obvert depth based upon final
grade, plus manholes larger than 1200 mm diameter.
Watermains Watermains larger than 200 mm in diameter and
associated valve chamber installations containing valves
larger than 200 mm in diameter or 2.5m deep.
3.10 Participating Owners to be credited for excess contributions as Non-
Participating Owners become Added Parties
As each Non-Participating Owner becomes an Added Party, the relevant
schedules will be recalculated to include such Added Party as a Participating
Owner and the previous Participating Owners shall be partially credited on a pro
rata basis as funds are received by the Trustee from the Added Party.
3.11 Participating Owners to co-ordinate development, proceed expeditiously
and in good faith
(a) Development Plan and Development Agreement
Each Participating Owner agrees to proceed in good faith to negotiate and settle
the terms of any Development-related agreements with the Approval Authority, to
obtain draft plan approval and register a Development Plan and/or the
construction and payment for each categoryof Community Services provided for
herein- with respect to each Participating Owner's lands. Each Participating
Owner agrees to keep the Consulting . Engineer, Trustee and the other
Participating Owners informed respecting the completion of the covenants and
requirements contained in its Development agreement and Development
conditions.
(b) Phasing
Each of the Participating Owners agrees that the phasing of Development shall '
be designed, insofar as is practical, to facilitate the Development of the lands
owned by the other Participating Owners.
(c) Engineering Approvals and Construction of Community Services and
Local Services
Each Participating Owner except ORC covenants and agrees to use its best
efforts to obtain engineering design approval from the Approval Authority of all of
the Community Services and Local Services located within its lands or for which
it is given credit in the schedules to this Agreement immediately after obtaining
Development approval, and in accordance with the ESP, the Neighbourhood
Plan and any applicable phasing plans approved by an Approval Authority, and
each Participating Owner covenants and agrees to provide its portion of each
Community Service located within its lands and to construct all Local Services
and Community Services in accordance with the ESP to the limits of its land.
3.12 Participating Owners will seek draft plan condition requiring that they be in
good standing pursuant to this Agreement, the Region's Front-Ending
Agreement and the William Jackson Agreement, if applicable, to register
and shall seek draft plan condition or other Development condition
requiring participation by Non-Participating Owners
Each of the Participating Owners agrees to seek a Development Plan condition
for its land within Duffin Heights which precludes the release or final
Development approval of its Development Plan(s), or any phase thereof, by the
Approval Authority unless a letter of release is provided by the Trustee to the
Approval Authority confirming that the Participating Owner is a party in good
standing under this Agreement, the Region's Front-Ending Agreement and the
William Jackson Agreement, if applicable. Participating Owners shall also seek
co-operation from the Approval Authority in assuring that all Non-Participating
Owners have a Development condition which precludes the release by the
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153
Approval Authority of any Development Plan, or phase thereof, for registration or
the final approval of any Development unless Non-Participating Owners become
parties to this Agreement, the Region's Front-Ending Agreement and the William
Jackson Agreement, if applicable, and are in good standing under each of these
agreements as a Participating Owner. All Participating Owners agree that they
will use all commercially reasonable efforts to prevent a Non-Participating Owner
from connecting to any Community Service or Local Service constructed by a
Participating Owner if a Non-Participating Owner refuses to execute this
Agreement or is not in good standing pursuant to the Region's Front-Ending
Agreement or the William Jackson, as applicable and as determined by the
Trustee.
3.13 Participating Owners will support and facilitate Development of other
Participating Owners and will not appeal Development applications that
comply with the Neighbourhood Plan
The Participating Owners covenant to act reasonably with respect to carrying out
the provisions of this Agreement and where, under the terms of this Agreement,
the Participating Owners are required to consent to any matter, the Participating
Owners shall not unreasonably nor arbitrarily withhold or delay their consent to
such matter.
(a) Facilitate Development of other Participating Owners: Each Participating
Owner except for ORC, will make every effort to facilitate the
Development of all Participating Owners' lands, provided such
Development is consistent. with the Neighbourhood Plan as well as this
Agreement. The Participating Owners except for ORC further covenant to
make every effort to facilitate the respective Developments of all
Participating Owners' Lands, where applicable, in a timely manner and in
accordance with the provisions of this Agreement, and with respect to the
construction of Community Roads and Local Roads and the installation of
Community Services and Local Services therein, the Participating Owners
hereby covenant, acknowledge and agree as part of their servicing
program within each phase as it proceeds to Develop, to extend the
construction of the Community Services and Local Services, including but
not limited to the Community Roads and Local Roads, to the limits of
their lands so as to permit the adjoining Participating Owners to connect
thereto and so as to provide uninterrupted vehicular access and servicing
connections throughout adjacent Development Plans. No Participating
Owner shall appeal any Development application of another Participating
Owner provided that the said application is consistent with the
Neighbourhood Plan and the ESP and that the applicant is not in default
pursuant to this Agreement.
(b) No obligation to proceed with Development or servicing/facilitation of
early discharge of encumbrances:
(i) Notwithstanding anything herein otherwise contained and for
greater certainty, it is understood that no Participating Owner shall
be obliged to proceed with servicing or to register or obtain final
approval of its Development Plan within any specified time frame.
However, if the Consulting Engineer determines that all or a
portion of any public road allowances, stormwater management
ponds and/or any other service in a'Development Plan or external
to a Development Plan are required in order to proceed with the
Community Services and Local Services. which benefit another
Participating Owner, non-proceeding Participating Owners shall
be required to undertake their reasonable best efforts to obtain
discharges and postponements of existing encumbrances and to
convey the required land as a fee simple transfer or easement
free of all encumbrances and all taxes, assessments, and
governmental charges whether yet due or delinquent, as required
by an Approval Authority (and in accordance with the provisions of
Section 4.5)1. for no remuneration for that limited purpose, subject
to a right to be compensated for the subject land at such time as
the dedicating Participating Owner proceeds to register or obtain
final approval of its Development Plan in accordance with this
Agreement.
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1 5 4 (ii) Participating Owners will deliver the aforementioned conveyances
required as soon as reasonably and practically possible following .
the receipt of a request to do so by the Trustee but nothing in this
subsection shall require any Participating Owner to obtain a partial
discharge of an encumbrance on lands which are required fora
public dedication, in advance of the registration or final approval of
a Development Plan, if it creates a financial liability in the form of a
penalty or an obligation to remit principal in relation to the lands to
be discharged. Otherwise, the Participating Owner requiring the
early dedication shall wholly compensate the dedicating
Participating Owner for the mortgage principal and/or penalty
associated with the early partial discharge. Of the monies paid to
an encumbrancer by a Participating Owner requiring early delivery
of Community Land for principal and/or a penalty associated with
a partial discharge, only the funds related to the principal which
was pre-paid and interest saved by the dedicating Participating
Owner shall be payable to the funding Participating Owner, via the
Trustee, at the time the dedicating Owner's Development Plan is
registered or finally approved. The Participating Owners hereby
confirm that under all applicable mortgages they have the right to
obtain partial discharges for lands required for public dedication
on either a gratuitous or a pro-rata basis (based on area to be
discharged)
(c) Rights of entry, temporary working licenses: In order that each of the
Participating Owners may proceed with the development of its
Development Plan(s) as expeditiously as possible, each Participating
Owner hereby grants to each other Participating Owner the right in the
nature of a temporary license, to enter upon its lands should such entry
be required in order to complete the Community Services, Local Services
and/or soil transportation and temporary or permanent grading works as
may be required to complete the Development of the lands of the
applicable temporary licensee(s), the necessity of which shall be
determined by the Consulting Engineer provided that;
(i) Prior to entering onto the land of another. Participating Owner, the
Participating Owner wishing to undertake any works on the lands
of another (the "Requesting Owner") shall provide written
notification (the "Initial Notice") of its intention to do so at least 30
Business Days in advance to the owner on whose lands such
works are to be completed (the "Second Owner").. The Initial
Notice shall . include detailed plans, tender documents,
descriptions and cost estimates relating to the proposed works,
the anticipated time frame for the completion of the proposed
works, identification of the individual responsible for overseeing
the proposed works and confirmation from a professional engineer
that the proposed works will comply with the ESP and have been
approved by Pickering (the "Construction Proposal"). The Second
Owner shall have 15 Business Days to confirm, in writing, whether
it wishes to complete the proposed works in accordance with the
Construction Proposal as set out in the Initial Notice and on what
date such works would be completed (the "Deadline Date") and,
provided the Deadline Date is not more than 20 Business Days
after the completion date proposed by the Requesting Owner in
the Initial Notice, the Second Owner shall be the party responsible
for the completion of the proposed works by the Deadline Date.
(ii) The Requesting Owner shall not be permitted to construct the
proposed . works unless the Second Owner approves the
Construction Proposal included with the Initial Notice. If the
Second Owner rejects the Construction Proposal included with the
Initial Notice, requests changes to the Construction Proposal that
the Requesting Owner does not agree to, or does not reply to the
Construction Proposal within 15 Business Days then the
Requesting Owner may submit the Construction Proposal to the
Consulting Engineer. Within 15 Business Days the Consulting
Engineer shall determine the necessity and reasonableness of the
proposed works and the Construction Proposal associated
therewith. The Consulting Engineer shall consider the
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155
development needs of all Participating Owners that benefit from
the proposed works. The Consulting Engineer shall have the
authority to accept or reject the Construction Proposal, or make
whatever changes to the Construction Proposal that the
Consulting Engineer in its discretion deems necessary and
Pickering approves of. Within 10 Business Days of the decision of
the Consulting Engineer with regard to the Construction Proposal
required to be utilized to construct the proposed works, the
Second Owner may agree to construct the proposed works in
accordance with the Construction Proposal as approved by the
Consulting Engineer in which case the Second Owner shall be.
responsible to complete the construction of the proposed works.
In such circumstance the Deadline Date shall be 45 Business
Days after the completion date set forth in the original
Construction Proposal. If the Second Owner does not elect to
build the proposed works in accordance with the Construction
Proposal as approved by the Consulting Engineer then the
Requesting Owner shall have 10 Business Days to elect whether
it intends to proceed . to construct . the proposed works in
accordance with the Construction Proposal as approved by the
Consulting Engineer by giving written notice to the Second Owner
and the Consulting Engineer. If the Requesting Owner does not
provide such notice of its intent to construct the proposed works in
accordance with the Construction Proposal as approved by the
Consulting Engineer, then it shall be deemed to have elected to
not proceed to construct the proposed works at that time.
(iii) A failure by the Second Owner to complete the proposed works by
the Deadline Date shall be considered a default hereunder
provided the Trustee determines that the delay in completion has
materially impacted the timing of the development of any other
Participating Owner and provided such delay was not due to force
majeure (as determined by the Trustee).
(iv) Each Participating Owner except ORC hereby covenants and
agrees to indemnify all other Participating Owners, as applicable,
for any and all damages and/or losses of any nature or kind, as
determined by the Consulting Engineer, which may result from the
entry upon the land of another Participating Owner pursuant to
this section but ORC acknowledges that it shall be responsible for
any and all damages and/or losses which may result from ORC
entry upon the land of another Participating Owner pursuant to
this section.
(v) . A Participating Owner proceeding with work pursuant to this
section, excepting ORC, shall be required to arrange adequate
liability insurance in an amount of no less than five million dollars
($5,000,000.00), which insurance shall name the party on whose
land the work is to be completed as an insured party and evidence
of such insurance shall be provided to the Trustee who shall
determine the adequacy of same.
(vi) Any Participating Owner on whose land a Community Service,
Local Service- or grading works have been completed or
immediately adjacent to whose land a Community Service, Local
Service or grading works have been completed, shall be
responsible, at the time of Development, for compensating the
front-ending Participating Owner for these costs, less the front-
ending Participating Owner's Proportionate Servicing Share of the
Community Service and any other recovery received by the front-
ending Participating Owner, as applicable and as determined by
the Consulting Engineer. Compensation by the benefiting
Participating Owner shall be made on or before it is entitled to
obtain a release from the Trustee pursuant to Section 3.21.
3.14 Administrative Costs payable on cash call basis and adjustments for
Historical Administrative Costs to be paid upon execution of Agreement
Page - 19
.1 5 6 Administrative Costs and Historical Administrative Costs that are payable
pursuant to this Agreement shall be borne and paid for by the Participating
Owners in accordance with their Participating Owner's Proportionate Shares
pending each Participating Owner's release from this Agreement. All Added
Parties shall be obligated to pay their Participating Owner's Proportionate Share
of the Administrative Costs and the Historical Administrative Costs, which the
Group incurred prior to the date the Added Party becomes bound to this
Agreement.
Upon a call from the Trustee, within forty-five • (45) Business Days after the
Trustee gives notice of such call to the Participating Owners, each Participating
Owner agrees to advance its Participating Owner's Proportionate Share of the.
Administrative Costs incurred, and. to be incurred, failing which the Participating
Owner shall be in default herein.
Each Participating Owner shall remit to the Trustee its Participating Owner's
Proportionate Share of the Historical Administrative Costs, or any adjustment that
may then be required, upon the execution of this Agreement.
3.15 No Participating Owner shall sell land to purchaser unless purchaser
agrees to be bound by Agreement
The Participating Owners acknowledge that the provisions of this Agreement run
with title to their respective lands described in Schedule "A-1" and the
Participating Owners covenant not to sell any Benefiting Lands within Duffin
Heights to any purchaser unless the purchaser agrees to be bound by the terms
of this Agreement, provided that this provision shall not apply to the purchasers
of individual lots which are sold with dwellings erected thereon. The agreement
of purchase and sale to be entered into by any Participating Owner for Benefiting
Lands shall require that, as a condition to the completion of the transaction, the
purchaser shall execute an agreement that it shall be bound to this Agreement
and any subsequent amendments as a Participating Owner.
3.16 Participating Owners to enter into separate arrangements for part block or
lot exchanges
Each Participating Owner shall be responsible for entering into distinct
arrangements with other Participating Owner(s) for the exchange of part lots or
blocks lying along their respective boundary lines in order to create combined
lots or blocks for which building permits may be obtained. No provision is made
in this agreement for any such exchanges, however, the area of all part lots and
blocks shall be included in each Participating Owner's Developable Acreage.
3.17 Community Servicing Costs completed by a Participating Owner to include
soft costs fee equal to 20% of hard costs
All Community Servicing Costs attributed to a Participating Owner shall include
compensation for all soft costs by adding a flat administration fee of 20% to the
Estimated Costs and Approved Costs, as applicable, which shall include all costs
associated with the approval and completion of the Community Services
including:
(a) the issuance of Letters of Credit to secure the works with the Approval
Authority,
(b) engineering and administrative fees charged by the Approval Authority,
(c) surveyors, engineers, consultants, lawyers and other professionals and
the like for or in respect of the design, installation and construction of or
otherwise related to the Community Services,
(d) additional studies to determine the scope of the Community Services and
any other appurtenant works or services,
(e) the preliminary design, final engineering design and construction review
services, and
(f) general design, project management and administration costs incurred by
the Participating Owner.
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157
No Participating Owner completing any Community Services shall be required to
provide the Consulting Engineer with proof of the above-listed costs.
3.18 Community Servicing Costs which are subject to a Development Charge
credit or recovery, but which a constructing Participating Owner cannot
obtain through a Development Charge credit or recovery shall be pooled
Any portion of a Community Servicing Cost which. is subject to a recovery
pursuant to an Approval Authority's Development Charge by-law, but which a
constructing arid/or front-ending Participating Owner cannot obtain through a
Development Charge credit or recovery at any time prior to such Participating
Owner being released from this agreement, shall be assigned to the Trustee.
Any such pooled Development Charge-related Community Servicing or other
front-ended costs will be administered by, the Trustee pursuant to the terms of
this Agreement.
A Participating Owner's entitlement to Development Charge credits or recoveries
hereunder: (i) shall be conditional upon such party entering into a front-ending,
early payment or other agreement with the Municipality or the Region that
provides for a clear entitlement to subject credits or recoveries and is in a form
approved by the Trustee which shall include, but not be limited to, the Region's
Front-Ending Agreement, and (ii) shall be based upon its contribution to the cost
of the front-ended facility giving rise to the credits or recoveries and the extent to
which it has utilized or received any credits or recoveries in accordance with the
subject front-ending, early payment or other agreement (by way of payout from
either the Trustee, the Municipality or the Region, set-off against payments owing
to the Municipality, the Region or otherwise).
Regardless of pooling, all Participating Owners shall be required to provide the
Consulting Engineer with confirmation of any Development Charge credits
actually utilized or recoveries received (by way of payout from the Trustee, the
Municipality or the Region, set-off against payments owing to the Municipality,
the Region or otherwise) and hereby authorize the Approval Authority to release
all information related thereto to the Consulting Engineer or the Trustee. It shall
be a condition of obtaining a clearance letter from the Trustee prior to registration
or final approval of a Development Plan that each Participating Owner discloses
its then anticipated entitlement to Development Charge credits or recoveries (by
way of payout from either the Trustee, the Municipality or the Region, set-off
against payments owing to the Municipality, the Region or otherwise). The
Trustee shall maintain a separate accounting respecting the allocation of
Development Charge credits or recoveries pursuant to this section.
Where credits actually utilized or recoveries received by a Participating Owner
exceed the allocation of credits or recoveries, as applicable and as same may be
adjusted from time to time, the Consulting Engineer shall provide a statement to
the Trustee quantifying the value of the overdrawn Development Charge credit or
recovery applied to the. affected Participating Owner(s). Upon receipt of such
statement, the Trustee shall call .for immediate payment by the affected
Participating Owner(s) of the excess credits utilized or recoveries received. If the
affected Participating Owner(s) fail to remit payment within thirty (30) Business
Days following receipt of a demand from the Trustee, the Trustee shall be
entitled to draw down on any Letter of Credit or cash on hand to the affected
Participating Owner(s)' account and to withhold any Community Land or other
revenue otherwise owing to the overdrawn Participating Owner and to apply
those funds to reimburse the other Participating Owners.
The following rules shall apply to the Trustee's administration of, accounting for
and ultimate distribution of Development Charge credits or recoveries:
(a) Where a Participating. Owner(s) front-ends more than its Participating
Owner's Proportionate Servicing Share of any Community Servicing Cost
or the cost of a service that is the subject of the Region's Front Ending
Agreement, provided that the subject service is eligible for a Development
Charge credit or recovery, that Participating Owner(s) shall be entitled to
first priority, in the receipt of Development Charge recoveries and credits.
from the Trustee. The first priority shall remain in place until the
Participating Owner(s)' front-ended share of costs that are subject to a
Development Charge credit or recovery is reduced to its Participating
Owner's Proportionate Servicing Share of the recoverable cost.
Page - 21 -
1 5 8 (b) Where more than one Participating Owner has front-ended costs. that are
subject to a Development Charge credit or recovery, the Development
Charge credits or recoveries shall accrue first to the Participating Owner
that is in a greater credit position based upon a pro rata comparison of
front-ending Participating Owners.
(c) Once the front-ending balances of Participating Owners who have front-
ended costs in excess of their respective Participating Owner's
Proportionate Servicing Share have been equalized, those front-ending
owners shall be entitled to receive all development charge credits or
recoveries on a pro rata basis until their respective receivables are
reduced to their Participating Owner's Proportionate Servicing Share of
the recoverable costs.
(d) At the stage all Participating Owners have contributed an amount equal to
their Participating Owner's Proportionate Servicing Share of the
recoverable cost, any further Development Charge recoveries or credits
received by the Trustee shall be paid or allocated, as applicable, to the
Participating Owners in order of their respective dates of registration or
approval of a Development Plan.
Any two Participating Owners may transfer Development Charge credits to one
another on terms that are acceptable to such Participating Owners, provided that:
(i) the contemplated transfer of Development Charge credits is administered by
the Trustee in order to assure that all Development Charge credits are properly
accounted for opposite the Region and Pickering as well as this Agreement, (ii) in
the view of the Trustee, the contemplated transfer of Development Charge
credits will not result in the delay of the application of the foregoing rules or any
payment or crediting of any Development Charge credits to any other
Participating Owner, and (iii) all Participating Owners and the Trustee are given
60 days prior written notice of the contemplated transfer of Development Charge
credits.
A failure by any Participating Owner to comply with the provisions of this section
shall be a default under this Agreement and shall be subject to the remedies set
out at Section 9.2.
3.19 Participating Owners accept land uses In Neighbourhood Plan
The Participating Owners accept the land use designations in the Neighbourhood
Plan and in strict reliance upon the provisions of this Agreement, provided that
amendments to the Neighbourhood Plan which are approved by the Ontario
Municipal Board, are agreed to in writing by all Participating Owners or where no
objection is raised to such amendment, shall be deemed to be incorporated into
this Agreement.
3.20 Release by Trustee for registration or final Development approval
contingent upon compliance with private agreements where Trustee so
directed
The Owners acknowledge that additional private agreements will be necessary
among Participating Owners in order to Develop their lands expeditiously and
cost effectively. Where Participating Owners enter into such further cost sharing
agreements such Participating Owners shall forthwith notify the Trustee of the
existence of such agreements, and compliance with the terms of those
agreements shall be a prerequisite for the Trustee's release letter to the
Municipality for registration or final Development approval, provided all parties to
the further agreements so direct the Trustee and advise which Participating
Owner(s) or designate are to provide confirmation' of compliance. The Trustee
shall not be called upon to make any independent assessment respecting
compliance with the further agreements and shall be entitled to withhold its
release letter pending confirmation of compliance from the identified parties to
the private agreement(s):
3.21 Participating Owner released for registration or final Development approval
when obligations pursuant to Agreement satisfied but will be released from
Agreement only after Community Services assumed and Community Land
dedicated
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159
At such time as a Participating Owner satisfies all of its pre Development Date
obligations pursuant to this Agreement, the Trustee shall issue a letter to the
Municipality confirming that the Participating Owner is in good standing and may
be released for registration or final Development approval. However, each
Participating Owner shall not be released from this Agreement for each phase of
its Development Plan(s) unless and until all. Community Services located within
and tributary to the subject phase of its Development Plan(s) have been
assumed by the Municipality and all Community Land located within the
Development Plan has been dedicated to an Approval Authority or the Trustee
and the Participating Owner remains in good standing pursuant to this
Agreement, the Region's Front-Ending Agreement and the William Jackson
Agreement, if applicable. A Participating Owner shall have the option of
remaining in the Agreement until all of the Community Services that a
Participating Owner benefits from are complete and the Consulting Engineer
confirms the Approved Costs for same and the Trustee has made all payments
and distributions contemplated by this Agreement. The only exceptions to this
entitlement to be released from the Agreement will exist where:
(a) a. Development contains no Community Services or Community Land, in
which case the Participating Owner will be released from this Agreement
when all Community Services that its lands are tributary to have been
assumed by the Municipality, as determined by the Consulting Engineer;
or
(b) a Participating Owner is the beneficiary of a Local Service, Community
Service and/or grading works constructed on its Participating Owners'
Lands by another Participating Owner and any payment remains
outstanding in accordance with subsection 3.13(c)(vi).
All Participating Owners that are released from this Agreement shall be obligated
to remit to the Trustee a contingency payment equal to 15% of the Estimated
Cost of those Community Services that are incomplete and which they benefit
from, on or before the date the Participating Owner is released from this
Agreement. Following release from this Agreement, a Participating Owner shall
have no obligation to make any further contributions but shall be entitled to
receive any outstanding over-dedication it may have for its combined Community
Services and Community Land account, an entitlement to revenue from the sale
of Community Land or any contributions made towards the Administrative Costs
or the Historical Administrative Costs (it being understood that all recoveries,
payments. or reimbursements received after the date of release from . this
Agreement for any Participating Owner, whether from an Approval Authority or
otherwise, will be factored in when determining an over-dedication.)
3.22 Participating Owners responsible for sharing park costs associated with
the Master Parkland Agreement
The Participating Owners will cost share the park dedication requirements set out
in the Master Parkland Agreement on the basis of their respective Participating
Owner's Proportionate Shares, either through the conveyance of land for park
purposes to an Approval Authority for which a credit is provided pursuant to the
Planning Act or through a debit against its combined Community Services and
Community Land account, as determined by the Consulting Engineer.
3.23 Participating Owners to Enter Into Region's Front Ending Agreement or to
satisfy obligations if an Added Party
(a) The Participating Owners who are the original signatories to this Agreement shall
be required to enter into a front funding agreement(s) with the Region that will
address the funding and construction of infrastructure that is required in order for
Duffin Heights, among other land, to Develop (the "Region's Front-Ending
Agreement"). The Region's Front Ending Agreement will address the funding
and construction of:(i) The extension of the Central Duffin Collector Sewer,
whether constructed by the Region or Participating Owner(s); (ii) the Zone II
water booster station; (iii) Sanitary pumping station; and (iv) Forcemain (from
sanitary pumping station to Brock Road) and gravity sanitary sewer (on Dersan
Street from Brock Road to the Central Duffin Collector sewer), as provided for in
the Regional Commissioner of Works Reports 2007-W-95 and 2008-W-62.
Page - 23 -
1 6 0 (b) For purposes of front-ending only (as the basis of cost sharing of these items are
dealt with separately in this Agreement), the Participating Owners agree to the
following as the basis for determining their respective Participating Owner's
Proportionate Servicing Share of the collective front-funding obligations under the
Region's Front-Ending Agreement:
(i) all services comprising Region-Constructed Core Services shall be
front-ended among the Participating Owners on the basis described in
Section 3.8(K), it being understood that Mattamy and Lebovic will be
solely responsible for delivering all of the draw-down security provided
for in the Region's Front-Ending Agreement and ORC will be
responsible for making payments to the Region for a fixed percentage
of the associated costs as they are incurred. The distribution between
the cash call obligations of ORC and the security to be provided by.
Mattamy and Lebovic pursuant to the Region's Front-Ending
Agreement does not reflect the funding obligations set out in Section
3.8(K), nor does the distribution take into account the contributions that
will be required by Cougs pursuant to Section 3.23(c) of this
Agreement and Added Parties pursuant to Section 3.23(r) of this
Agreement. Schedule "J" to this Agreement sets out the distribution of
Region-Constructed Core Services costs among the parties to this
Agreement. ORC shall remit to the Trustee a top up payment for the
shortfall in its contribution obligations in accordance with a cash call to
be issued by the Trustee that will be coincident with each payment that
ORG makes to the Region for the Region-Constructed Core Services;
(ii) all services comprising Owner-Constructed Core Services shall be
front-ended among the Participating Owners based on a pro rata
calculation applied only to Participating Owners with Benefiting Lands
based on a Participating Owner's total Developable Acreage.
determined to be Benefiting Lands as a percentage of all Participating
Owners' Developable Acreage determined to be Benefiting Lands by
the Consulting Engineer on a tributary acreage basis; and
(iii) Administrative Costs applicable to the completion of the Region's Front
Funding Agreement, the Owner-Constructed Core Services and the
Region Constructed Core Services and any costs, associated with
services addressed in the Region's Front-Ending Agreement but which
are not Region-Constructed Core Services or Owner-Constructed Core
Services. shall be front-ended among the Participating Owners in
accordance with their respective Participating Owner's Proportionate
Shares.
(c) The Participating Owners shall meet all financial obligations under the Region's
Front-Ending Agreement in connection with any Region-Constructed Core
Services or in connection with the construction of any Owner-Constructed Core
Services within 30 days of receiving a demand by the Trustee. Notwithstanding
the foregoing, the Participating Owners acknowledge that:
(i) Cougs shall not be obligated to provide the Trustee with its
Participating Owner's Proportionate Servicing Share of any costs or
security under the Region's Front-Ending Agreement in connection
with any Region-Constructed Core Services or in connection with the
construction of any Owner-Constructed Core Services until that date
which is 20 days following the granting of draft plan approval for the
Cougs' land within Duffin Heights or any portion. thereof that has
received draft plan approval;
(ii) the ORC shall provide the Trustee with its Participating Owner's
Proportionate Servicing Share of any financial obligations under the
Region's Front-Ending Agreement in connection with any Region-
Constructed Core Services or in connection with the construction of
any Owner-Constructed Core Services on a cash call basis no more
than 30 days after receipt of a cash call from the Trustee; and
(iii) Mattamy and Lebovic will be compensated for the additional costs
each will incur in providing more security to the Region pursuant to the
Region's Front-Ending Agreement for the Owner-Constructed Core
Services than each is required to based upon their respective
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161
Participating Owner's Proportionate Servicing Share in a sum to be
fixed by the Consulting Engineer on the date the Trustee issues its first
cash call for Owner-Constructed Core Services. The amount shall be .
payable by the Participating Owners on the date the Trustee issues its
first cash call for the cost of the Owner-Constructed Core Services or
on the date this Agreement is. executed, whichever is later.
(d) It is acknowledged that the financial obligations pursuant to the Region's Front-.
Ending Agreement must be in place before the commencement of construction of
each component of the applicable Region-Constructed Core Services or the
Owner-Constructed Core Services.
(e) The Participating Owners agree to complete the Owner-Constructed Core
Services in accordance with the provisions of this Agreement and, at all times, in
compliance with the provisions of the Region's Front Funding Agreement. Funds
required for payment for the Owner-Constructed Core Services shall be collected
on a cash call basis based on each Participating Owner's Proportionate Servicing
Share of the Owner-Constructed Core Services.
(f) The Participating Owners will remit payment within 30 days following receipt of a
written notice. calling for payment from the Trustee in connection with any front-
ended item contemplated by this Section or the Region's Front Ending
Agreement.
(g) The applicable Participating Owner's Proportionate Share and the Participating
Owner's Proportionate Servicing Share for each Participating Owner will be
subject to adjustment as Net Developable Area of the Owners' Lands is
confirmed through the subdivision registration process and the inclusion of
Added Parties. Each Participating Owner hereby agrees to adjust any payments
or security following receipt of a notice of readjustment from the Trustee.
(h) The Participating Owners acknowledge that execution of this Agreement
constitutes their respective. covenants to proceed with the design and
construction of the Owner-Constructed Core Services following approval by the
Region. The Consulting Engineer shall design and the. Participating Owners
shall construct those Owner-Constructed Core Services which have been or will
then be approved by the Approval Authority forthwith following execution of this
Agreement, provided that:
(i) An individual Participating Owner may construct a portion of the
Owner-Constructed Core Services if the Consulting Engineer and the
Committee unanimously approve the proposed form of tender.
Approval for individual Participating Owners' contracting to construct
such Owner-Constructed Core Services shall be contingent in all cases
upon providing satisfactory evidence to the Trustee that adequate
security has been posted with . the Approval. Authority for the
completion of the subject Owner-Constructed Core Services; and
(ii) The Owner-Constructed Core Services shall be designed in the
manner which is most cost efficient, bearing in mind individual
Participating Owners must conform therewith. The Consulting
Engineer must consider the views -of the Participating Owners or their
respective engineers.
(i) The Trustee shall create a management corporation on behalf of the Group for
purposes of entering into any and all contractual arrangements required to
complete the Owner-Constructed Core Services that are not being completed by
an individual Participating Owner in accordance with the provisions immediately
above, including the execution of development and/or servicing agreements
required by the Approval Authority in order to undertake and complete the
Owner-Constructed Core Services. All contracts entered into shall be with
contractors at arms length to the Trustee, Consulting Engineer and Participating
Owners.
(j) The Consulting Engineer shall prepare and issue a call for tenders for the Owner-
Constructed Core Services based upon the Owner-Constructed Core Services
Plan attached as Schedule "H", as same may be amended in accordance with
the unanimous approval of the Participating Owners and consent of the Approval
Authority, forthwith upon the execution of this Agreement. Upon receipt of the
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162
tender(s), the Consulting Engineer shall recommend to the Committee a
contractor for the construction of the Owner-Constructed Core Services. The
Committee or an appointed sub-committee may then negotiate with the tenderer.
After allowing such interval as the Consulting Engineer deems reasonable for
such negotiations, the Consulting Engineer shall recommend a contract to the
Group and unless the Committee adopts a decision to the contrary, a contract as
recommended shall be concluded by the Trustee as an authorized signing officer
of the management corporation.
(k) Each Participating Owner hereby agrees to deliver forthwith'to the Trustee,
following approval by the Approval Authority of the subject Owner-Constructed
Core Services, transfers to the appropriate Approval Authority of all land and
easements within its ownership which are required to complete the subject
Owner-Constructed Core Services. Where the transfers of land and/or
easements cannot be completed because required reference plans have not yet
been deposited, the said transfers shall be completed with the plan and part
numbers left blank. Documents delivered in blank shall be accompanied by an
irrevocable direction to the Trustee authorizing the Trustee to complete the plan
and part numbers at such time as the requisite reference plans have been
registered.. In addition to delivering the requisite transfers of land and easements
pursuant to this section, Participating Owners shall deliver from all mortgagees
registered on title to the subject land partial discharges for transfers of land in fee
simple and postponements of mortgage for transfers of easements. Where the
subject lands cannot be properly described because a reference plan has not yet
been deposited, the affected Participating Owners shall also be obligated to
deliver an irrevocable direction from their mortgagee(s) to the Trustee authorizing
the completion of the plan and part numbers at such time as the requisite
reference plans have been registered. All other Participating Owners
acknowledge that ORC shall not be required to deliver any of the aforementioned
transfers or easements unless and until it has obtained all required approvals
and the ORC agrees to take all commercially reasonable steps to obtain such
required approvals.
(1) The Participating Owners hereby grant a right in favour of the management
company created by the Trustee or the Trustee, as applicable, as well as its
contractors, agents and assigns, which right shall constitute a right in the nature
of a licence, to enter upon their respective lands for purposes of constructing and
maintaining the Owner-Constructed Core Services until such time as same may
be assumed by the Approval. Authority. The rights granted under this section
shall be enforceable as against each Participating Owner in the form of an
injunction preventing any obstruction of the rights granted hereunder and each
Participating Owner's execution of this Agreement constitutes consent to
judgment in this regard.
(m) All Community Land transfers delivered to the Trustee in accordance with this
section shall be accounted for through the reconciliation process provided for in
Article 4 for Community Services and Community Land. As such, no statements
issued by the Consulting Engineer for Owner-Constructed Core Services shall
refer in any respect to the value associated with the Community Land required to
complete the Owner-Constructed Core Services.
(n) The Consulting Engineer shall issue payment certificates as the work on the
Owner-Constructed Core Services proceeds. Upon receipt of such payment
certificate, the Trustee and/or the Consulting Engineer shall provide the
Participating Owners with copies of the payment certificates. Based upon the
terms of each payment certificate, each Participating Owner (other" than a
Participating Owner that constructs the subject portion of the Owner-Constructed
Core Services in accordance with subsection (a) above) shall, within 30 days
following its receipt of any payment certificate remit a certified cheque to the
Trustee for its Participating Owner's Proportionate Servicing Share "of the
applicable portion of the subject Owner-Constructed Core Services.
(o) If at any time or from time to time a Participating Owner does not provide its
Participating Owner's Proportionate Share or Participating Owner's Proportionate
Servicing Share, as applicable, of the security or cash call payments
contemplated herein or. pursuant to a call for same by the Trustee under the
Region's Front-Ending Agreement, such failure to provide security or cash shall
constitute a default by the Participating Owner pursuant to Article 9 and all.
Page - 26 -
V
remedies thereunder (including, without limitation, the interest provisions therein)
shall be available.
(p) The Consulting Engineer shall be responsible for providing ongoing certifications.
to the Approval Authority regarding the substantial -completion of Owner-
Constructed Core Services in order that any letters of credit lodged with the
Approval Authority by the Participating Owners may be reduced accordingly.
(q) Each Participating Owner acknowledges and agrees that the payments made
and security deposited by the Participating Owners for the Owner-Constructed
Core Services costs include funding on behalf of Non-Participating Owners with
Benefiting Lands. Accordingly, the Participating Owners and the Trustee
covenant and agree to pursue. all commercially reasonable means to recover
such costs incurred on behalf of these Non-Participating Owners.
(r) While all. Added Parties shall not be parties to the Region's Front-Ending
Agreement, they shall be obligated to satisfy their obligations pursuant to the
Region's Front-Ending Agreement upon and after execution of this Agreement as
if each Added Party had been an original. signatory to the Region's Front-Ending
Agreement. This obligation includes, upon execution, the replacement of each
Added Party's Participating Owner's Proportionate Servicing Share of all security
previously delivered to the Trustee pursuant to the Region's Front-Ending
Agreement that has not then been drawn down by the Region. In addition, upon
execution, each Added Party shall remit to the Trustee for distribution among the
original signatories to this Agreement, its Participating Owner's Proportionate
Servicing Share of any security that has the Region has drawn down and which
the original parties have paid for services pursuant to the Region's Front-Endign
Agreement. Added Parties shall also remit any increase in costs from the date
the payment(s) are made by the original owners or security is drawn down by the
Region to the date of payment by an added Party based on the application of the
Southam Construction Index applicable in the Province of Ontario. The Trustee
shall confirm and administer Added Parties' obligations pursuant to the Region's
Front-Ending Agreement as the Region does not wish to include provisions in the
Region's Front-Ending Agreement for direct participation by additional parties.
(s) The Participating Owners shall work cooperatively and in good faith to recover
the maximum possible amount for the services that are the subject of the
Region's Front Ending Agreement.
3.24 Participating Owners with Benefiting Land for the Services Associated with
the Implementation of Brock Road Reconstruction and related stormwater
management facilities shall front-end costs upon receipt of notification by
Trustee
The Participating Owners acknowledge that the Region of Durham has confirmed
its intention to proceed with the urbanization of Brock Road within Duffin Heights
in 2009. In order to co-ordinate this urbanization work with the Community
Services required by some Participating Owners in the vicinity of Brock Road, all
Participating Owners with Benefiting Land for the Services Associated with the
Implementation of Brock Road Reconstruction and related stormwater
management facilities shall front end the associated construction costs to the
Trustee within thirty (30) days following receipt of a call for funds.
The Trustee will enter into contracts on behalf of the Participating Owners who
have Benefiting Land.for the Services Associated with the Implementation of
Brock Road Reconstruction. The Trustee shall receive its instructions regarding
the tendering of the Services Associated with the Implementation of Brock Road
Reconstruction and related stormwater facilities from the Participating Owners
with Benefiting Land pursuant to the decision making process set out in Article 7,
provided that the voting arrangements shall be adjusted to exclude all
Participating Owners who do not have any Benefiting Land.
3.25 Participation in and compliance with the William Jackson Agreement a
requirement for release from this Agreement for all parties and benefiting
landowners
Lebovic, Mattamy and ORC will enter into the William Jackson Agreement in
relation to the Services Associated with the Implementation of Street A / William
Jackson Drive. All landowners, that are cited in the William Jackson Agreement
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164
as benefiting from the Services Associated with the Implementation of Street
A/William Jackson Drive shall be parties in good standing pursuant to the William
Jackson Agreement in order to be released from this Agreement. Confirmation
of compliance with the William Jackson. Agreement shall be provided by the
Trustee named in the William Jackson Agreement.
Should any conflict arise in connection with the interpretation of the provisions of
this Agreement and/or the provisions of the William Jackson Agreement, the
provisions of this Agreement shall prevail.
3.26 Pickering shall not have any obligations under this Agreement other than
for the Pickering's SWM 4 Obligations
Notwithstanding any . other provision of this Agreement, Pickering's sole
requirement pursuant to this Agreement shall be to contribute to Pickering's
SWM 4 Obligations in accordance with the cash call provisions provided for at
Section 3.24. The costs that Pickering shall contribute to in relation to the
stormwater management pond and the related stormwater infrastructure which
will be necessitated by the Services Associated with the Implementation of Brock
Road Reconstruction shall include all design and construction costs that are
required by an Approval Authority including, but without limitation, all storm
sewers tributary to such stormwater management facility, but not including long
term maintenance costs until municipal assumption. Pickering's contribution to
the costs of construction SWM 4 will be comprised of:
(a) Pickering's Participating Owner's Proportionate Servicing. Share of the
costs to construction SWM 4; and
(b) Pickering's Participating Owner's Share of the Community Land required
for SWM 4.
Pickering shall not be obligated to contribute to. the maintenance of SWM 4 or the
stormwater infrastructure that is required in relation to the Services Associated
with the Implementation of Brock Road Reconstruction. However, Pickering
-covenants and agrees that it will: (i) not sell any land that is declared surplus
within Duffin Heights unless its purchaser becomes an Added Party to this
Agreement on the basis that its purchaser assumes the full rights and
responsibilities of every other Participating Owner except ORC, including but not
limited to the payment of all costs pursuant to this Agreement that other
Participating Owners are required to contribute to but which Pickering is not
required to contribute to pursuant to this Section 3.26, and (ii) without in any way
fettering its discretion, take all reasonable steps to assist in the recovery of any
costs relating to SWM 4 Works attributable to Non-Participating Owners.
Pickering shall be entitled to receive notification of Participating Owners'
meetings, to receive minutes of meetings and to cast its votes pursuant to the
provisions contained in Sections 5.2, 7.1 and 7.2.
3.27 ORC's purchaser to be bound to all terms contained in this Agreement for
.all Participating Owners other than Pickering
Other than a sale or transfer to an Approval Authority or other government body,
ORC covenants and agrees that it will not sell any land it owns within Duffin
Heights to a purchaser unless the purchaser becomes an Added Party to this
Agreement and on the basis that its purchaser assumes the full rights and
responsibilities of every other Participating Owner except Pickering, including but
not limited to an obligation to provide all indemnities referenced in this
Agreement as well as the delivery of security which ORC is not required to
provide pursuant to this Agreement.
ARTICLE 4
COMMUNITY SERVICES AND COMMUNITY LAND
A. COMMUNITY SERVICES
4.1 Participating Owners responsible for constructing Community Services
and Local Services on their lands in compliance with the ESP, co-
ordinating with other Participating Owners and incorporating in
subdivision agreement
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165
Subject to the provisions of subsection 3.13(c), the Participating Owners shall be
responsible for constructing the Community Services and Local Services located
on their respective lands within Duffin Heights in compliance with the ESP and to
assume responsibility for the rectification of any deficiencies and maintenance of
same until the subject Community Services and Local Services are assumed by
the Approval Authority through their respective Development agreements with
the Municipality. All Participating Owners that construct a Community Service or
a Local Service that another Participating Owner requires to service its land, shall
obtain written confirmation from the Consulting Engineer, prior to construction,
that its engineering plans comply with the ESP and that the services have been
co-ordinated with other Participating Owners. A constructing Participating
Owner's Credit shall be fixed on the date-each Community Service is assumed
by an Approval Authority in the amount confirmed by the Consulting Engineer,
subject only to indexing in accordance with section 3.3, and no Credit.will be
available to any Participating Owner until a Community Service has been
certified as an Approved Cost by the Consulting Engineer.
4.2 Participating Owners to provide certification from their professional
engineer regarding Community Services compliance and cost confirmation
which is to be certified by Consulting Engineer
Each Participating Owner shall provide a certificate from its professional
engineers to the Consulting Engineers that confirms the cost of the Community
Services constructed within its Participating Owner's Lands and that the
Community Services comply with the ESP. The Consulting Engineer shall from
time to time determine the Estimated Costs incurred for Community Services and
shall revise the schedules by substituting Approved Costs for Estimated Costs.
Where a Participating Owner constructs a Community Service that does not
comply with the ESP, it will be considered a defaulting owner and subject to the
remedies provided for in section 9.2 of this Agreement. In addition, the
constructing Participating Owner will be responsible for all additional costs
incurred by a Benefiting Owner in obtaining an alternative servicing solution
approved by the Consulting Engineer and the Approval Authority and
necessitated by the construction of a Community Service that does not comply
with the ESP.
The Consulting Engineer shall review cost submissions received by Participating
Owners' professional engineers and the Consulting Engineer shall satisfy itself
that the allocation of costs for Community Services is reasonable and may adjust
the cost as the Consulting Engineer.deems appropriate.
4.3 Reconciliation of allocations and schedules to take place at each
registration and until all Community Services assumed and Community
Land. disposed of
The Trustee and the Consulting Engineer shall complete a reconciliation of all
allocations and schedules maintained pursuant to this Agreement on the date the
first Development Plan, or phase thereof, is registered or receives final approval
and each time a. Development Plan, or phase thereof, is registered or receives
final approval until such date as all Community Services are assumed. by the
Approval Authority and all Community Land is disposed of and proceeds
distributed among the Participating Owners. This Agreement shall terminate on
the later of:
(a) the date the last Community Service is assumed by an Approval
Authority; ,or
(b) the last parcel of Community Land is disposed.of and the proceeds are
distributed by the Trustee pursuant to the terms of this Agreement.
4.4 Retainer of Consulting Engineer to design, tender or supervise service
construction
One or more of the Participating Owners may at any time retain the Consulting
Engineer to design, tender and supervise the construction of the Community
Services or Local Services located within its Participating Owner's Lands, which
retainer shall not be deemed to be a conflict with the Consulting Engineer's
obligations pursuant to this Agreement, provided that the prior approval of the
Committee is obtained.
I
i
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1 6 6 COMMUNITY LAND
4.5 Easements and transfers of Community Land for Community Services to
be granted upon request or upon registration or final approval of
Development Plan
In conjunction with the registration or final approval of its Development Plan,
each Participating Owner shall as soon.as is reasonably and practically possible
grant to the Municipality or any other Approval Authority such easements,
conveyances or other rights in land as are required by the Municipality or
Approval Authority in connection with the Development and servicing of the
Development Plan and the Development Plans of all other Participating Owners,
failing which a Participating Owner will be in default pursuant to this Agreement
and the provisions of Section 9.2 shall apply during. the period of default. In
addition, each Participating Owner shall grant such private, temporary licenses
upon receipt of written demand from the Trustee, as may be required to facilitate
the completion of the Community Services. Where a Participating Owner seeks
to register or obtain final approval of a Development Plan, it shall be required to
convey or dedicate to the Approval Authority or the Trustee on behalf of the.
Group, or otherwise in accordance with this Agreement, all its Community Land
contained therein, free from mortgages, charges,. easements, encumbrances and
all taxes, assessments, and governmental charges, whether yet due or
delinquent, failing "which a Participating Owner shall be considered in default
pursuant to Section 9.2.
4.6 Participating Owners with Community Land parcels to transfer parcels to
Trustee pending sale or adequately secure to Trustee's satisfaction
Participating Owners with Community Land parcels located on their Development
Plans shall:
(a) except for ORC, transfer any.Community Land parcels that are not immediately
required by an Approval Authority or school board, as applicable, to the Trustee
as a bare trustee on behalf of the transferring Participating Owner with the
proceeds to be disbursed among the Participating Owners in accordance with
this Agreement. As a condition of the Trustee issuing a release letter in
accordance with Section 4.16, affected Participating Owners shall deliver to the
Trustee a transfer in electronic format sufficient for registration purposes for the
Community Land parcels not immediately required by an Approval Authority or
school board, as applicable, and an irrevocable direction to the Trustee that the
transfer and the discharge of any mortgages, charges, liens, easements or
encumbrances required pursuant to this Agreement may be registered
electronically immediately upon the registration or final approval of the
Development Plan and the lifting of any inhibiting order that may be registered on
the land within the Development Plan, or
(b) with the consent and upon terms approved by the Trustee, retain ownership of
the applicable Community Land block, provided that the discharge of any
mortgages, charges, liens, easements or encumbrances are registered forthwith
upon the registration or final approval of the Development Plan and in all cases
either,
(i) The Participating Owner shall deliver to the Trustee all documentation
that the Trustee may reasonably require in order to electronically
register a restriction against the subject land that prevents any transfer
of the land without the consent-of the Trustee. The Trustee shall not
provide this consent to release the restriction unless the land is then
subject to an irrevocable direction that all proceeds owing pursuant to
agreement of purchase and sale approved by the Committee have
been directed for payment to the Trustee, or
(ii) The Participating Owner shall deliver to the Trustee all documentation
that the Trustee may reasonably require in order to electronically
register a charge/mortgage of land in favour of the Trustee on behalf of
the Participating Owners in an amount which is equal to the area of the
Community Land parcel multiplied by 1.5 times the current Acreage
Land Value, which mortgage shall become due and payable, on
demand, upon a transfer of any kind, and
i
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167
(iii) all legal costs associated with the transfer of the Community Land
parcel to a school board or Approval Authority, as applicable, or in
accordance with this Agreement shall be a shared by the Participating
Owners as an Administrative Cost.
(c) The Participating Owners acknowledge that subsection 4.6(b) (i) shall be the only
means by which ORC shall secure any Community Land within its ownership that
is not.immediately required by an Approval Authority or a school board.
4.7 Committee to direct Trustee respecting sale of Community Land and net
proceeds distributed in accordance with Benefiting Owner's Proportionate
Share
No Participating Owner shall enter into an agreement to dispose of
(a) Community Land or any other land within the ownership, either legal and/or
beneficial, of the Trustee for the,benefit of the Group pursuant to this Agreement,
or
(b) Community Land within a Participating Owner's ownership pursuant to
subsection 4.6(b),
nor approve any appraisal contemplated by any such agreement without the prior
approval of the Committee as the Committee shall. determine the manner in and
terms upon which all such Community Land is to be disposed of in accordance
with the voting provisions contained in Section 7.5 and, without limitation, shall
direct the Trustee in writing respecting (i) the terms of all agreements to be
entered into respecting the subject land, whether for a sale to a school board or
any Approval Authority, and (ii),the approval of all appraisers and appraisals
contemplated by such agreements. Further, prior to entering into such
agreements of purchase and sale, the Committee shall determine whether it
wishes to proceed with the redesignation of any Community Land or other land
which the Group has a legal or beneficial interest in pursuant to this Agreement.
All of the net proceeds of Community Land, after accounting for carrying costs
such as realty taxes and maintenance as well as transaction-related costs and
land transfer tax, shall be distributed by the Trustee in accordance with each
Participating Owner's Benefiting Owner's Proportionate Share and in the order
of each Participating Owner's registration or final approval of its Development
Plan(s), provided that no Participating Owner shall be entitled to receive payment
unless their respective Development Plans have been released by the Trustee
for registration or final approval. There shall be no adjustment by the Trustee for
any discrepancy which may exist between the Acreage Land Value contributed
by the Participating Owners toward the Community Land costs and the actual
price paid for the acquisition of Community Land by a third. party. Rather,
Participating Owners who are entitled to receive funds from the sale of
Community Land shall receive their. Benefiting Owner's Proportionate Share of
the funds actually received by the Trustee from time to time.
If an Approval Authority determines not to acquire 'a parcel of Community Land
after a Participating Owner has reserved the land and complied with the
provisions of this section, the Participating Owner whose Development Plan
included the parcel shall have a right of first refusal to acquire the parcel. The
right of first refusal will be open for an offer to acquire the parcel within 7 days
following notification by the Trustee to the affected Participating Owner of the
highest price offered and the other material terms of the offer that have been
approved by the Committee for acceptance. If the affected Participating Owner
determines not to acquire the, parcel on these terms, it shall be sold by the
Trustee upon the terms approved by the Committee.
Under-dedicated Owners shall not be entitled to receive Community Land
revenues, nor shall the Trustee be required to retain funds for an Under-
dedicated Owner, if the Under-dedicated Owner has any current or future
indebtedness under this Agreement. In such a circumstance, if Community Land
is sold the amount required to satisfy an Under-dedicated Owner's indebtedness
shall first be applied to reduce the Debit amount and the funds shall be released
to the next Over-dedicated Owner who is in a position to receive funds, based on
the priorities set out in this Agreement. Further, if a Participating Owner is in
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1 6 8 default under this Agreement, the Trustee shall offset the total amount of the
default against any proceeds owing pursuant to this Section 4.7.
4.8 Method for calculating value of Community Land contributions
Community Land contributions and total Community Land credits shall be finally
determined by the Consulting Engineer and will be valued by multiplying the area
of a Participating Owner's Community Land contribution by the Acreage Land
Value. A Participating Owner's overdedication in Community Land shall be
determined by multiplying the area of its overdedication in Community Land by
the Acreage Land Value. A Participating Owner's underdedication in Community
Land shall be determined by multiplying the acreage of its underdedication in
Community Land by the Acreage Land Value where applicable.
4.9. Undercontribution or overcontribution of Community Land to be
determined on phase by phase , basis for Development within a
Participating Owner's. Lands
Prior to each Participating Owner proceeding with the registration or final
approval of Development within its Participating Owners' Land in phases, the
Consulting Engineer shall determine the value of that Participating Owner's
under-dedicated acreage or over-dedicated acreage, as applicable, on a phase
by phase basis.
4.10 Community Land transfers recognized upon completion or alternative
arrangements are made in accordance with Agreement
Transfer of Community Land shall for the purpose of this Agreement be deemed
completed when documentation required to electronically register a transfer of
Community Land has been delivered to the Trustee or Approval Authority for land
described in a plan of subdivision or registered reference plan to which the plan
registration number has been left blank, and which the Trustee is authorized to
insert after the registration of the plan of subdivision or the reference plan, as.
applicable. No Participating Owner may register a Development Plan or have its
Development released by the Trustee unless and until that Participating Owner
has conveyed all of its Community Land within the subject Development Plan,
either by dedication to the Approval Authority or by the delivery of documentation
to the Trustee allowing for the electronic transfer of the subject land in
compliance with the Planning Act, or otherwise in accordance with Section 4.6.
Each Participating Owner covenants and agrees that any environmental or
adverse soil remediation required by an Approval Authority to its Community
Land shall be done by such Participating Owner at its sole cost and expense and
not by the Group, the intention being that such remediation cost is not a
Community Servicing Cost.
4.11 Periodic Adjustments
The area of the total Community.Land, the area of the total Developable Acreage
and the Participating Owner's Proportionate Share and Benefiting Owner's
Proportionate Share of each Participating Owner shall be determined from time
to time on the basis of the most recent information available pertaining to the
Development Plans of all Participating Owners and shall be adjusted in the
schedules to this Agreement by the Consulting Engineer whenever such
information changes or whenever an Added Party becomes a signatory hereto.
The Acreage Land Value shall be established at the value provided for in this
Agreement under the definition for Acreage Land Value but shall be subject to
adjustment within the first six months following the execution of this agreement
and on each anniversary date of this Agreement unless a decision is made not to
change the Acreage Land Value by a majority of at least 80% of the votes and a
minimum of three (3) Participating Owners that are then eligible to be cast by the
Participating Owners. Where the Acreage Land Value is to be adjusted, it shall
be established by a qualified real estate appraiser by applying the terms of
reference attached as Schedule "G". Such qualified real estate appraiser shall be
appointed by the Trustee on the written direction of the Committee. No appraiser
shall be approved by the Committee: (i) until such appraiser has disclosed to the
Committee whether they have dealt,with or been engaged by a. Participating
Owner or Participating Owner-related entity within the prior 12 months and, if so,
has disclosed and described the nature of such dealings or engagement, and (ii)
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without receiving at least 80% of the votes cast at a vote in which a minimum of 169
three (3) Participating Owners that are then eligible to cast such votes
participate.
Any Participating Owner that seeks a release for the registration of a
Development Plan or the final approval of a Development Plan during a period
when a new Acreage Land Value is in dispute shall be entitled to have its
obligations established pursuant to the prior Acreage Land Value but shall have
its obligations adjusted once the new Acreage Land Value is established in
accordance with Sections 8.2 or 8.3, as applicable.
Within ninety (90) days of the date of this Agreement the Group shall engage a
qualified real estate appraiser to determine the Acreage Land Value by applying
the terms of reference attached as Schedule "G".
C. ACCOUNTS - ADMINISTRATION AND SECURITY
4.12 All Under-dedicated Owners except ORC to provide security or certified
funds for estimated Underdedication in Community Land and Community
Services on registration or final approval of Development Plan or individual
phases thereof
A Participating Owner's Proportionate Share of Community Land contribution
requirements shall be calculated at 100% of the value established in this
Agreement, as same may be revised from time to time in accordance with this
Article. A Letter of Credit for the under dedication of an Under-dedicated Owner
for its combined Community Land, and Community Services account for each
distinct phase of a Development Plan shall be provided to the Trustee prior to the
release of each phase of a Participating Owner's Development Plan, provided
that:
(a) if an Over-dedicated Owner is entitled to payment (by having previously
conveyed Community Land and/or constructed Community Services) by
the date an Under-dedicated Owner seeks a release by the Trustee then
the Under-dedicated Owner must submit a payment by certified cheque to
the Trustee to the extent required in order to satisfy the outstanding
entitlement of Over-dedicated Owner(s); and
(b) ORC shall not be required to secure their Under-dedication but shall remit
to the Trustee payment for their estimated Under-dedication, if applicable.
4.13 Trustee to repay Over-dedicated Owners' entitlement in order of
registration or final approval of Development Plan or individual phases
thereof, as applicable
The Trustee shall record each Over-dedicated Owner's entitlement to funds for
its net overdedication in Community Lands and Community Services on the date
it releases the Over-dedicated Owners' Development Plan, or individual phases
thereof, for registration or final approval. An Under-dedicated Owner shall not be
required to remit to the Trustee an increase in the Acreage Land Value for
Community Land after the date each phase of Development within its
Participating Owner's Lands is released by the Trustee for registration or final
approval. Over-dedicated Owners shall not be entitled to any intervening
increase in the Acreage Land Value that may occur between the date the last
Under-dedicated Owners were released for registration and the date the next
Over-dedicated Owner is entitled to receive compensation for an over-dedication
in Community Land.
Where more than one Participating Owner registers or obtains final release for a
Development Plan within any six month period, as measured from the date the
first Development Plan is registered, all Over-dedicated Owners that have
registered during this period shall be entitled to receive payment from the funds
maintained by the Trustee for,this purpose on a pro rata basis. Thereafter, any
amount that remains outstanding to the Over-dedicated owners that registered
first shall be paid in full before the Trustee may remit payments received from an
Under-dedicated Owner to an Over-dedicated Owner that registered
subsequently.
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1 7 0 4.14 Participating Owners to deliver Development Plan, surveyor's certificate,
cost submission, statement of obligations from Consulting Engineer prior
to Trustee authorizing release for registration
Each Participating Owner, prior to or contemporaneously with the Development
of any of its lands (and in any event prior to release by the Trustee of any
Development Plan or other Development Date), and when a Development Plan
or other Development has been reduced to final form and is ready for execution
shall provide the Trustee with:
(a) A copy of the Development Plan or other relevant land use plan along with all
subdivision, servicing, development and site plan agreements relating to such
Development Plan.
(b) An Ontario Land Surveyor's certificate confirming the Developable Area and
Community Lands area within the Development Plan, certifying that such has
been calculated in accordance with the provisions of this Agreement.
(c) Certification from its professional engineer that the Community Services to be
constructed are in accordance with the master servicing plan.
(d) Cost submission from its professional engineer confirming the cost to construct
the Community Services, that the Community Services have been paid for and
the date each Community Service was completed in order that the Consulting
Engineer may calculate.any applicable indexing in accordance with section 3.3.
(e) Statement of Community Land and Community Services obligations from the
Consulting Engineer pursuant to this Agreement and delivery to the Trustee of
any payment or Letter(s) of Credit required pursuant to the Consulting
Engineer's statement, provided that ORC shall not be required to provide a Letter
of Credit but shall be obligated to remit a payment to the Trustee for any amount
of its under-dedication that is payable pursuant to the Consulting Engineer's
statement of Community Land and Community Service obligations.
4.15 Participating Owner to provide solicitor's certificate confirming transfer of
Community Lands prior to or simultaneously with registration
Prior to registration or final release of a Development Plan, each Participating
Owner shall provide the Trustee with a solicitor's certificate confirming that such
Participating Owner has conveyed or has made satisfactory arrangements
pursuant to Section 4.6 hereof to register a restriction, convey or charge all
Community Lands within the lands subject to the registration of such
Development Plan, as required in accordance with the terms of this Agreement.
The Trustee is hereby authorized to take such steps as the Trustee in its
discretion deems advisable to verify the matters referred in this Section, at the
expense of the Participating Owner required to dedicate the Community Land.
4.16 Trustee to provide release letter to Municipality upon satisfaction of
requirements in Agreement
The Trustee shall deliver to a Participating Owner who has:
(a) complied with its obligation to convey or charge/mortgage Community Land to
the satisfaction of the Trustee;
(b) paid in full all outstanding financial obligations to the Trustee in accordance with
this Agreement for Administrative Costs and Historical Administrative Costs;
(c) provided all Letters of Credit or certified cheque payment required of such
Participating Owner under the Agreement in accordance with _an under-
dedication in Community Services or Community Land, as confirmed by the
Consulting Engineer, it being understood that ORC will not be required to deliver
a Letter of Credit under any circumstance but shall deliver the requisite payment
to the Trustee for its under-dedication;
(d) provided the certifications from its consulting engineer that are required pursuant
to this Agreement;
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(e) complied with all provisions of this Agreement affecting such Participating Owner, 171
up to that time;
(f) satisfied the Trustee that it is in compliance with all private agreements between
Participating Owners pursuant to Sections 3.7 and 3.16; and
(g) provided a cost submission from its professional engineer confirming the cost to
construct the Community Services, that the Community Services have been paid
for, and the date each Community Service was completed in order that the
Consulting Engineer may calculate any applicable indexing in accordance with
section 3.3,
a release letter certifying to the Approval Authority that such Participating Owner
has complied with its obligations under this Agreement. Each Participating
Owner agrees not to proceed with the final approval or registration of any
Development Plans or Development of its lands until a release letter has been
obtained; and further agrees that no release letter may be obtained without
paying any obligations arising pursuant to this Article; or in the alternative,
making arrangements reasonably satisfactory to the Committee and the Trustee
to secure such payment.
4.17 All estimates to be finally revised on assumption of Community Services
and confirmation of Developable Areas and adjustments for Community
Services Costs to be payable after registration on cash call basis
All calculations of Debits and Credits shall be subject to variation, revision and
adjustment in accordance with the provisions of this Agreement. All calculations
referred to in the schedules are based on Estimated Costs and will be revised in
final form by the Consulting Engineer as and when the Consulting Engineer
confirms the Approved Costs and the Developable Areas of the Participating
Owners' Lands in accordance with this Agreement which shall be finally revised
on the date each Community Service is assumed by an Approval Authority.
Where a Participating Owner's obligations increase after its Development, or
individual phase thereof, has been released by the Trustee for registration or final
approval, it shall be obligated to contribute the additional Community Servicing
Costs and Community Land costs payable as a result of ongoing adjustments to
the schedules by the Consulting Engineer, but subject to the limitation on an
increase in the Acreage Land Value provided for at Section 4.13. If the Trustee
does not then hold sufficient Letters of Credit to pay for the cost adjustment, the
affected . Participating Owner shall remit any difference required upon the
issuance of a cash call by the Trustee.
4.18 Consulting Engineer shall prepare draft certificate upon request of
Participating Owner
The Consulting Engineer shall examine the data provided pursuant to Section
4.14 and shall calculate,. based on the provisions of this Agreement, the
Participating Owner's Proportionate Share of its Community Land obligations and
the Participating Owner's Proportionate Servicing Share of the cost of the
Community Services and the amount due from such Participating Owner and
shall prepare a draft certificate setting out those amounts, including all relevant
details as to the calculations in question. The cost of preparing the Consulting
Engineer's certificate shall be an Administrative Cost to be shared by the
Participating Owners on a Participating Owner's Proportionate Share basis.
4.19 Draft certificate to be provided to Participating Owner for review and
possible submission to arbitration.
The Consulting Engineer shall forward a copy of the draft certificate to a
requesting Participating Owner, all other Participating Owners and the Trustee.
Any of the Participating Owners or their respective engineers may, for a period of
five (5) Business Days from receipt of the draft certificate review with the
Consulting Engineer all calculations contained therein, and .if still not satisfied
with the draft certificate may within an additional period of three (3) Business
Days next following the expiry of the five (5) Business Day period; submit the
matter to dispute resolution as per Article 8, provided that the Participating.
Owner requiring the certificate shall be entitled to be released by the Trustee for
registration or final Development approval upon satisfaction of the certificate's
requirements pending the completion of the dispute resolution process.
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172
4.20 Draft certificate becomes final 9 Business Days following delivery to
Participating Owner if no dispute
On the expiry of the cumulative period of nine (9) Business Days without any
submission to dispute resolution as per Article 8, the Consulting Engineer shall
issue a final certificate. If there has been a submission to dispute resolution as
per Article 8, the Consulting Engineer shall be notified by the mediator or
arbitrator of his or her decision and shall issue a final certificate in accordance
therewith and pending the resolution of the dispute the Trustee shall administer
this Agreement in accordance with the revised Consulting Engineer's certificate.
The final certificate when issued shall be forwarded to the affected Participating
Owner and to the. Trustee, whereupon the Trustee and the Consulting Engineer
shall revise any affected schedules and adjust affected Participating Owners'
accounts accordingly.
4.21 Participating Owner entitled to receive payment for over-dedication when
all provisions of Agreement complied with but no Participating Owner
shall be entitled to collect more than its ultimate Over-dedication
Upon a Participating Owner having:
(a) lodged security or payment with the Municipality or the Region for the
performance of all work for which a Participating Owner has received any Credit
pursuant to the schedules and calculations provided for in this Agreement; and
(b) complied with all other terms hereof;
a Participating Owner shall be entitled to payment of the amount of its
Participating Owner's over-dedication in accordance with this Agreement,
provided that no Participating Owner shall be entitled to collect more than its
ultimate over-dedication based upon its entire Participating Owner's Lands, as
determined by the Consulting Engineer, regardless of how much any individual
phase may be over-dedicated.
4.22 No payments to be made until Consulting Engineer certifies costs
A Participating Owner shall not be entitled to receive a payment from the Trustee
for cost of the Community Services or any applicable indexing unless the
Consulting Engineer has certified that the cost of the Community Service is., in
the opinion of the Consulting Engineer, reasonable. If the Consulting Engineer is
of the opinion that the cost of any particular Community Service in a contract is
unreasonable, the Consulting Engineer shall make an adjustment to the
schedules to reflect such cost as the Consulting Engineer considers reasonable
and all other schedules and Credit balances shall be adjusted accordingly.
Determinations by the Consulting Engineer may be reviewed and amended by
the Committee, provided that the Committee's determination shall be subject to
the dispute resolution provisions set out in Article 8 and the Consulting Engineer
shall confirm any appropriate hold-back in distributions to an Over-dedicated
Owner pending the completion of the dispute resolution process.
ARTICLE 5
TRUSTEE
5.1 Functions
The Trustee shall perform the functions specified in the Agreement and the
functions ancillary thereto, and shall generally do all such things required to give
effect to those provisions of this Agreement, in accordance with, the intentions of
the parties as expressed by the terms of this Agreement, and at the direction of
the Committee, relating to the duties of the Trustee.
5.2 Special Functions
The Trustee shall notify Pickering of all meetings of the Participating Owners at
which, in the view of the Trustee, matters directly impacting Pickering's SWM 4
Obligations will be considered or voted upon within a reasonable time prior to the
meeting, and•such meetings may be attended by Pickering if Pickering notifies
I
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173
the Trustee of its intention to attend the meeting within a reasonable time prior to
the commencement of the meeting. The Trustee shall further provide Pickering
with minutes of all meetings of the Participating Owners, which, by operation of
the foregoing, Pickering would have been entitled to attend within a reasonable
time following such meeting.
5.3 Books of Account
The Trustee shall maintain such bank accounts, books and records as are
required to properly and efficiently carry out the provisions of this Agreement,
and for that purpose may engage the assistance of a qualified Chartered
Accountant. Without limitation, such books and records shall include all data
prepared by the Consulting Engineer and relevant to the determination of Debits
and Credits and a complete record of Letters of Credit on hand and funds
received and disbursed through the bank accounts maintained by the Trustee, as
well as all Goods and Services taxes allocable to the Participating Owners,
where applicable.
5.4 Access to Accounts
Any Participating Owner when not in default shall have full and unrestricted
access at all reasonable times, and upon forty-eight (48) hours prior notice, to the
books and records maintained by the Trustee and shall have the right, at its cost,
to make copies thereof.
5.5 Trustee's Fees
In consideration of the performance by the Trustee of its duties from time to time
pursuant to this Agreement, the Participating Owners shall pay the.Trustee its
fees and disbursements (including the fees and disbursements of other persons
retained by the Trustee pursuant to its powers under this Agreement) as an
Administrative Cost. Each Participating Owner shall pay its Participating Owner's
Proportionate Share of such fees and disbursements within thirty (30) Business
Days after receiving an account from the Trustee. Fees shall be based on hourly
rates.
5.6 Financial risk of Trustee
The Trustee shall not be required to expend or risk its own funds or otherwise
incur financial liability, whether in performance of any of its obligations hereunder
or, otherwise. Any amount due and owing to the Trustee hereunder and any
amount required to be expended by the Trustee in the performance of its duties
or the exercise of its rights or powers hereunder shall be a first charge against all
funds from time to time held by the Trustee.
5.7 Resignation of Trustee
The Trustee may at any time resign its administration hereunder and be
discharged from all further duties and liabilities under this Agreement by giving to
the Participating Owners at least three months' notice or such shorter period of
notice as the Committee may accept as sufficient, provided, however, if the
Trustee is directed by the Participating Owners or any of them to do anything in
any way related to this Agreement which the Trustee, in its judgment, is unwilling
or unable to do, the Trustee may, upon notice to the Participating Owners,
immediately resign its administration and shall thereupon be discharged from all
further duties and liabilities. When approved by the Committee in accordance
with Article 7, the Trustee may be removed upon receipt of at least three months'
notice. Upon resignation or removal by the Participating Owners, the Trustee
shall turn over all books, documents, accounting records and electronic files, as
well as all funds belonging to the Group, to the party identified by the Committee,
provided that save for negligence or an act taken in bad faith the Trustee shall
not be obligated to turn over its books, records and documents if it has any .
account for services rendered that is outstanding.
5.8 Liability of Trustee
Notwithstanding any °provision of this Agreement or law to the contrary, the
Trustee shall be liable to the Participating Owners in the event of fraud or bad
faith, but not otherwise. The Trustee may act on the opinion or advice or
Page - 37
7 4 information obtained from any lawyer, accountant or other expert (but shall not
be bound to act upon such opinion, advice 'or information) and may employ such
assistance as the Trustee considers necessary or advisable for the proper
discharge of its duties and may pay proper and reasonable compensation for all
such assistance.
5.9 Indemnity of Trustee
The Participating Owners except ORC, shall, on a joint and several basis,
indemnify and save the Trustee harmless from all claims, demands, losses and
liabilities which may be made against the Trustee or for which the Trustee may
become liable pursuant to this Agreement. This provision shall not merge upon
but shall survive the resignation or removal of the Trustee and the termination of
this Agreement. All Participating Owners, except ORC, shall contribute their
respective Participating Owner's Proportionate Share of all amounts payable
pursuant to this Section 5.9 upon receipt of a cash call from the Trustee,
provided that pending the curing of any outstanding default(s), the Developable
Acreage of all defaulting Participating Owner(s) shall be deducted from the total
Developable Acreage of all Participating Owners for purposes of determining
each the Participating Owner's Proportionate Share.
5.10 Reporting
The Trustee shall report annually to each Participating Owner on the anniversary
date of this Agreement with respect to the state of the accounts maintained by it
hereunder, provided the Consulting Engineer provides the Trustee with the
information which it is obliged to furnish pursuant to the terms of this Agreement.
ARTICLE 6
CONSULTING ENGINEER
6.1 Functions
The Consulting Engineer shall perform the functions specified in this Agreement
and the functions ancillary thereto and generally shall do all things required to
give effect to those provisions of this Agreement, and at the direction of the
Committee and the Group shall enter into a retainer arrangement with the
Consulting Engineer that requires the Consulting Engineer to satisfy the
obligations of the Consulting Engineer pursuant to this Agreement.
6.2 Duties
Without limiting any provision of this Agreement, the functions of the Consulting.
Engineer shall include:
(a) Where a Participating Owner requests a Credit on account of a Community
Service, examining the progress of the work and certifying the same to the
Participating Owner concerned and the Trustee. (Notwithstanding the foregoing,
the Consulting Engineer may rely on progress certificates and support
documents provided by a Participating Owner);
(b) Certifying completion or substantial completion of a Community Service or part
thereof when it is either necessary or desirable to do so for the purposes of this
Agreement;
(c) Determining the Estimated Cost 'and the Approved Cost of any Community
Service, which shall be subject to review in accordance with Sections 2.3 and
4.22;
(d) Preparing preliminary and final calculations with respect to all matters relating to
the determination of each Participating Owner's Proportionate Servicing Share,
Benefiting Owner's Proportionate Share and Participating Owner's Proportionate
Share;
(e) Reviewing and adjusting preliminary calculations and revising schedules from
time to time and certifying any variations to the Trustee for the purpose of
adjusting accounts;
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175
(f) Calculating increases or decreases of any Letters of Credit or.payments owing
from time to time as circumstances may warrant;
(g) Determining the apportionment of any Community Land and Community Services
Cost in accordance with the principles set out in this Agreement and to provide
the Trustee with any confirmation of same as may be required pursuant to this
Agreement;
(h) Determining which Benefiting Owners are benefited by any Community Land
and/or Community Service so.that the cost thereof may be borne and paid.
initially by those Participating Owners benefited thereby and ultimately by all
Benefiting Owners benefiting thereby; and
(i) Any other functions contemplated herein or as requested by the Trustee or the
Committee in accordance with the terms of this Agreement.
6.3 Consulting Engineer's fees
In consideration of the performance by the Consulting Engineer of its duties from
time to time pursuant to this Agreement, the Committee shall settle the terms of
the remuneration of the Consulting Engineer's costs. Each Participating Owner
shall pay its Participating Owner's Proportionate Share of such costs within thirty
(30) Business Days after receiving an account from the Consulting Engineer,
approved by the Committee.
6.4 Liability of Consulting Engineer
Notwithstanding any provision of this Agreement or law to the contrary, the
Consulting Engineer shall be liable to the Participating Owners in the event of
fraud or bad faith, but not otherwise. The Consulting Engineer may act on the
opinion or advice or information obtained from any other professional engineer,
lawyer, accountant or other expert (but shall not be bound to act upon such
opinion, advice or information) and may employ such assistance as the
Consulting Engineer considers necessary or advisable for the proper discharge
of its duties and may pay proper and reasonable compensation for all such
assistance.
6.5 Resignation of Consulting Engineer
The Consulting Engineer may at any time resign its administration hereunder and
be discharged from. all further duties and liabilities under this Agreement by
giving to the Participating Owners at least three months' notice or such shorter
period of notice as the Committee may accept as sufficient, provided, however, if
the Consulting Engineer is directed by the Participating Owners or any of them to
do anything in any way related to this Agreement which the Consulting Engineer,
in its judgment, is unwilling or unable to do, the Consulting Engineer may, upon
notice to the Participating Owners, immediately resign its administration and shall
thereupon be discharged from all further duties and liabilities. When approved by
the Committee in accordance with Article 7, the Consulting Engineer, may be
removed upon receipt of at least three months' notice. Upon resignation or
removal by the Participating Owners, the Consulting Engineer shall turn over all
books, documents, accounting records and electronic files, as well as all.funds
belonging to the Group, to the party identified by the Committee, provided that
save for negligence or an act taken in bad faith the Consulting Engineer shall not
be obligated to turn over its books, records and documents if it has any account
for services rendered that is outstanding.
6.6 Indemnity of Consulting Engineer
The Participating Owners except ORC shall, on a joint and several basis,
indemnify and save the Consulting Engineer harmless from all claims, demands,
losses and liabilities which may be made against the Consulting Engineer or for
which the Consulting Engineer may become liable pursuant to this Agreement..
This provision shall not merge upon but shall survive the resignation or removal
of . the Consulting Engineer and the termination of this Agreement. All
Participating Owners, except ORC, shall contribute their respective Participating
Owner's Proportionate Share of all amounts payable pursuant to this Section 6.6
upon receipt of a cash call from the Trustee, provided that pending the curing of
any outstanding default(s), the Developable Acreage of all defaulting
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.1 7 W Participating Owner(s) shall be deducted from the total Developable Acreage of
all Participating Owners for purposes of determining each the Participating
Owner's Proportionate Share.
ARTICLE 7
THE COMMITTEE
7.1 Composition and duties of Committee
The Participating Owners hereby create a Committee, with each. Participating
Owner having the right to appoint one representative to the Committee, and the
Committee shall have the authority to address, administer and determine those
matters arising under this Agreement or necessarily incidental thereto including:
(a) Dealing with any consultants retained by the Committee;
(b) Dealings with the Consulting Engineer in accordance with Article 6 and reviewing
all determinations made thereunder, if requested by any Participating Owner;
(c) Dealings with the Trustee in accordance with Article 5;
(d) Engaging solicitors as the Committee's functions require;
(e) Approving the Consulting Engineer's, Trustee's and other consulting fees;
(f) Dealing with Community Land and/or Community Services in accordance with
Article 4;
(g) Dealing with compensation for Community Lands and/or Community Service in
accordance with Article 4;
(h) Admitting Added Parties;
(i) Dealing with the allocation of Development Charge credits and recoveries
received by Participating Owners in accordance with Section 3.18;
(j) Determining and dealing with all other matters pertaining to the application and
implementation and termination of this Agreement; and
(k) Directing the Trustee or any other designated party to collect and maintain an
account for any costs addressed pursuant to this Agreement.
7.2 Voting rights
The representative of each Participating Owner, except Pickering, shall have a
right to cast one vote per Developable Acre of land owned by the Participating
Owner upon the execution of this Agreement, provided that once any portion of a
Participating Owner's Land has been released from this Agreement by the
Trustee, the Developable Acreage within the released land shall be deducted
from the Participating Owner's total votes unless the matter to be decided has a
material impact on the Participating Owner's interests, as determined by the
Trustee with regard to Section 4.11 and otherwise at the Trustee's reasonable
discretion. Pickering's representative shall have a right to cast one vote per
Developable Acre of land owned by Pickering upon execution of this Agreement,
as per the above conditions, only when said vote directly impacts Pickering's
SWM 4 Obligations. No Participating Owner in default under this Agreement, as
determined by the Trustee acting reasonably, shall be entitled to vote. The votes
associated with a Participating Owner in default shall be deducted from the total
votes of all Participating Owners for purposes of determining quorum and
majority requirements.
7.3 Quorum is majority of votes eligible to be cast
Any meeting of the Committee shall be properly constituted if Participating
Owners' representatives are present that hold a majority of the votes, which are
eligible to be cast on the question(s) before the Committee, either in person or by
written proxy.
L
Page - 40 -
7.4 Committee Members may vote by instrument of proxy and each / /
Participating Owner shall provide list of persons authorized to act on its
behalf to the Committee
Participating Owners' representatives shall have the right to vote on any question
considered by the Committee through a proxy holder, provided that a written
instrument of proxy is delivered to the Committee prior to the commencement of
the meeting. Each Participating Owner shall provide to the Committee a list-of
individuals authorized to appear and vote on its behalf.
7.5 With limited exceptions, all Committee. decisions are made by votes
representing at least 70% of the total Developable Acreage and at least
three Participating Owners
In all matters respecting the Committee, all decisions shall be made by votes
cast representing at least 70% of the votes that are eligible to be cast and by at
least three (3) Participating Owners but which shall exclude all Developable
Acreage that is owned by a Participating Owner in default, as determined by the
Trustee, except for the following:
(a) any amendment to the methodology to be followed in preparing the Consulting
Engineer's schedule, Schedule "C", shall require the unanimous consent of all
Participating Owners who have not been released from this Agreement or who
have been released but would be impacted by a change in methodology;
(b) pursuant to Section 4.11, a determination not to adjust the Acreage Land Value
on any anniversary date of this Agreement shall require the approval of at least
80% of the Developable Acreage owned by at least three (3) non-defaulting
Participating Owners that have not been released from the Agreement or have
been released from the Agreement but are Over-dedicated Owners that are
waiting for compensation that is, in whole or in part, based on an over-dedication
in Community Land;
(c) if any decision may have the effect of amending or contradicting any expressed
provision of this Agreement, such arrangements require unanimous approval of
the Participating Owners that have not been released from this Agreement or that
have been released from the Agreement and are impacted by the decision to be
made, as determined by the Trustee.
_ I
Save as otherwise provided for in this Agreement, should the Committee be
unable to reach .a decision based upon the levels of approval set out above, the
question may be submitted to the dispute resolution process contained in Article
.8 by any Participating Owner.
7.6 Committee's administrative functions may be performed by'two or more
Committee Members
The Committee may appoint two or more Committee members to perform
admidistrative functions such as, without limitation, approval of invoices and
directing payment within budgets approved by the Committee, to two or more of
its Committee members with voting rights.
7.7 Committee meetings may be called by any Committee Member provided
adequate notice given
A meeting of the Committee may be called by any Committee member at any
time. No meeting of the Committee shall be held unless and until three.(3)
Business Days written notice thereof has been given to the Participating Owners
in accordance with the notice provisions set. out at Section 9.6 or unless all
Participating Owners agree to waive or abridge the notice period. Any notice of
meeting shall specify with reasonable particularity the matters to be dealt with
and no matters may be voted upon at any Committee meeting, which are not
referenced in the notice.
7.8 Decisions in writing by all Participating Owners binding
Where no meeting of the Committee is held, decisions of the Committee shall be
binding if concurred with, in writing, by all Participating Owners.
Page - 41 -
178
7.9 Meeting of Committee Members to be kept and distributed
Minutes of meetings shall be taken by an individual appointed by the Committee
or a Participating Owner's representative so appointed and copies shall be
distributed to all Participating Owners.
ARTICLE 8
DISPUTE RESOLUTION
8.1 Negotiation
Each Participating Owner will attempt, in good faith, to first resolve any
controversy, claim or dispute (a "Dispute") arising out of or relating to this
Agreement or the performance, enforcement, breach, termination or validity of it,
including the determination of the scope of the contract, promptly by negotiating
with the other Participating Owner(s), or with representatives of the- Participating
Owner(s) involved in the Dispute, each of which persons must have due authority
to settle the Dispute.
The concerned party (the "Applicant") will simultaneously give the other party (the
"Respondent") or parties (the "Respondents") written notice of the Dispute which
notice shall list the names of the Respondents. Within ten (10) calendar days
after the sending of this notice, each Respondent shall submit to the Applicant,
and also to each of the other Respondents, a written response or notification that
it refuses to participate in which case the matter shall be subject to the arbitration
provisions set out at Section 8.3 of this Agreement, failing which the Respondent
shall be deemed to have refused to participate. Each notice and response shall
include (a) a statement of the relevant party's position and a summary of the
evidence and arguments supporting its position, and (b) the name and title of the
individual who will represent the party at the negotiation. The said individual
representatives shall arrange to meet at a mutually acceptable time and place
within fourteen (14) calendar days of the date of sending of the Applicant's notice
and thereafter as often as they reasonably deem necessary to exchange relevant
information and to.attempt to resolve the Dispute.
8.2 Mediation
If the Dispute has not been resolved within twenty-one (21) calendar days of the
giving of the Applicant's notice under Section 8.1, or if a Respondent or its
representative do not so respond or does not meet or agree to arrange to meet
within fourteen (14) calendar days of the Applicant's notice (the earlier of which
shall be the "Submission Date"), the Dispute shall be submitted to mediation in
accordance with the mediation rules attached to this Agreement as Schedule "E".
8.3 Arbitration
If a mediation has concluded and any of the Participating Owners have been
unable to reach a mutually satisfactory conclusion of the dispute which'was
mediated, or if any of the affected Participating Owners has refused to participate
in a mediation pursuant to Section 8.1 within 14 days following receipt of written
notice or is deemed to have refused to participate in accordance with Section
8.1, the dispute shall be finally settled, by arbitration in accordance with the
provisions of the Arbitration Act, 1991 (Ontario) and any amendments or
replacements thereto. The rules contained in Schedule "F" shall apply to any
such arbitration.
8.4 Procedure for settling disputes
Save as otherwise expressly provided for in this Agreement, the procedures
specified in this Article are the only procedures for the resolution of disputes
arising out of or related to this Agreement or the performance, enforcement,
breach, termination or validity thereof, including the determination of the scope of
the contract to resolve controversies, claims and dispute in accordance with this
Agreement, or any other related agreement among the parties. However, the
dispute resolution process provided for in this Article shall not be available where
the Committee has made a determination on an. issue in accordance with the
approval levels provided for in Section 7.5 or where the Consulting Engineer has
Page - 42 -
determined that a Participating Owner benefits from a Local Service, Community 1 79
Service or grading works that have been constructed on its Participating Owners'
Lands by another Participating Owner in accordance with subsection 3.13(c)(vi).
If any party attempts to have issues resolved other than pursuant to this
Agreement, the parties agree that this Article may be used in support of an
application or motion to stay any such action or other proceeding that is
commenced and is contrary to the provisions of this Agreement. Before or during
.the time that the Group, or any of them, are involved in a dispute and follow
these procedures, however, a Participating Owner may seek from an appropriate
court a preliminary injunction or other preliminary judicial relief if such
Participating Owner reasonably believes that such a step is necessary to avoid
irreparable damage or harm. Even if a Participating Owner has taken such
action, the affected Participating Owners will be required to continue to
participate in good faith in the procedures specified in this Agreement. However,
nothing in this Article 8 is intended. to permit varying the provisions of, rather than
applying, the terms of this Agreement.
ARTICLE 9
GENERAL PROVISIONS
9.1 Capacity and Indemnity
Each Participating Owner represents that it has the authority to bind the legal
owners of the respective land holdings described at Schedules "A-1", "A-2" and
"A-3". Each Participating Owner, except ORO (an "Indemnifying Owner")
covenants and agrees to: (i) indemnify each Participating Owner except ORC,
and (ii) save each and. every other Participating Owner harmless; from and
against any liability, damage, cost, claim, suit, action or caused action brought
by or on behalf of any person or persons, corporation or corporations, or
government authority against such Owner arising by reason of the breach of this
Agreement by an Indemnifying Owner, its employees, contractors or agents
provided that such breach or default did not arise by virtue of circumstances
beyond the Indemnifying Owner's reasonable control. Upon any party hereto
becoming aware of any such claim, suit or action, it shall forthwith give notice
thereof to the party thought to be liable in accordance with the provisions of this
section and such party shall be given the opportunity of disputing such claim or
defending such suit or action at. its own expense.
9.2 Defaulting Participating Owners
If any Participating Owner fails to:
(a) make any payment required under this Agreement within the fime
required,
(b) fails to lodge any Letter of Credit within the time required, it being
understood that ORC shall never have an obligation to lodge a Letter of
Credit with the Trustee or an Approval Authority but will remit monetary
payment in the alternative,
(c) fails to grant a licence or deliver to the Trustee the documentation
required by the Trustee in order to transfer or encumber Community Land
or other land all provided for in this Agreement, or
(d) is otherwise in default of its obligations pursuant to this Agreement, the
Region's Front-Ending Agreement or the William Jackson Agreement, if
applicable,
as determined by the Committee in consultation with the Trustee and/or the
Consulting Engineer (excluding the vote of the Participating Owner that is alleged
to be in default as well as all related companies listed on Schedule "A-3 the
Trustee shall immediately give notice to such Participating Owner and to all other
Participating Owners specifying the default complained of and furthermore the
parties hereto agree as follows,
(i) if the Participating Owner in default shall not within five (5) days of the
receipt of such notice have remedied the default then the other
Participating Owners may pro rata. (based on area of Developable
Page - 43 -
180
Acreage), as approved by the Committee, remedy the default obligation,
make the payment or supply the Letter of Credit required, unless such
default is a failure to pay or provide an Owner's Proportionate Servicing
Share of a to be front funded service contemplated by the Region's Front
Ending Agreement or Section 3.23 herein, in which case the other
Participating Owners except for ORC shall, on a pro rata basis (based on
Developable Acreage), remedy the default, provided however that ORC
agrees that it shall seek additional approvals as may be required to
remedy such default on a' pro-rata basis (based on Developable
Acreage.) The Participating Owner in default shall be liable to pay the
remediation cost to each Participating Owner who participates in the
remedying of the default (in the case of a failure to deliver a Letter of
Credit, the cost of providing and maintaining the Letter of Credit in force
for the period during which it is required to be in force pursuant to this
Agreement) plus interest on the cost obligation at the Interest Rate plus
five (5%) percent per annum. In the case of a. payment of money to
remedy a default the Participating Owner in default shall pay the
outstanding obligation and interest at the Interest Rate plus five (5%)
percent per annum for the period during which money is outstanding.
Sums drawn under a Letter of Credit provided to remedy a default shall
be charged for at the same rate as funds directly advanced. The Trustee
shall instruct the Consulting Engineer.to include all costs associated with
remedying the default in the schedules to this Agreement.
(ii) The Trustee shall be entitled to execute, on behalf of the defaulting
Participating Owner, except for ORC, all documentation, which is
necessary to register a notice of default under this Agreement on title to
the lands of the defaulting Participating Owner but the Trustee shall not
be precluded from seeking any other remedy provided for in this
Agreement against ORC should it be in default hereunder. It is expressly
intended that the amounts owing under this Agreement, together with any
interest thereon, shall constitute a first lien and charge on and against the
lands of the defaulting Participating Owner, it being the intent of the
parties hereto that a security interest, lien or other encumbrance would
thereby be created or imposed upon the defaulting Participating Owner's
interest in its lands within the Neighbourhood Plan and that the non-
defaulting Participating Owners shall have the rights of a secured party
pursuant to the Mortgages Act, R.S.O. 1990, and the Personal Property
Security Act, R.S.O. 1990, as same may be amended from time to time.
(iii) Neither a Participating Owner in default nor any representative of such
Participating Owner shall be entitled to vote at Committee meetings, and
quorum requirements shall be amended by subtracting the vote of the
Participating Owner in default and reducing the Developable Acreage
accordingly.
(iv) No Participating Owner in default shall receive any payment from the
Trustee. while in default.
(v) No Participating Owner in default may receive a release letter in
accordance with Section 4.16.
(vi) The Trustee shall initiate any enforcement proceedings against a
defaulting Participating Owner, which the Committee shall direct. All
actual costs incurred shall be payable initially by the non-defaulting
Participating Owner on a Proportionate Share basis, however, the entire
cost shall ultimately be borne by the defaulting Participating Owner and
payment shall be 'a condition to the Trustee's release letter.
(vii) Nothing herein shall preclude any Non-Defaulting Participating Owner
from its entitlement to seek damage from the Defaulting Participating
Owner as a .distinct and additional remedy.
9.3 Defaulting Participating Owner's rights restored upon curing of default
A Participating Owner in default, upon curing the default shall cease to be in
default and shall be restored to its rights as if such default had never occurred.
9.4 Added Parties and potential purchasers
Page - 44 -
Whenever a person who owns land in Duffin Heights is agreeable to becoming a 181
party to this Agreement or is required by either the operation of Section 3.15or
the Approval Authority to become a party to this Agreement, the parties hereto
shall consent to such person.becoming a party to this Agreement provided such
Added Party shall execute a covenant or agreement in a form and content
acceptable to the Trustee, acting reasonably, to be bound by all terms. and
provisions of this Agreement as fully as if such person had been originally named
as a party to this Agreement and all appropriate adjustments/additions shall be
made to the schedules and to the relevant provisions.of this Agreement required .
thereby. All Administrative Costs associated with the amendment to the
schedules and determination of the Added Parties' obligations regarding
Administrative Costs shall be borne exclusively by the Added Party. The Added
Party shall also remit to the Trustee its Participating Owner's Proportionate Share
of .all prior Administrative Costs, including Historical Administrative Costs, as a
condition of becoming a party to this Agreement as well as all security and funds
required in relation to the Region's Front-Ending Agreement, as set out in Section
3.23.
Any Added Party that acquires land from ORC (other than an Approval Authority
or other government body) or Pickering shall be required to comply with all terms
contained in this Agreement that are applicable to all parties except ORC and
Pickering (i.e., an Added Party acquiring land from ORC or Pickering shall not
benefit from any of the exceptions to the Participating Owner's obligations set out
herein).
Any person interested in purchasing land within Duffin Heights shall be entitled to
consult the Consulting Engineer and the Trustee respecting the particulars of this
Agreement, provided that a flat fee of $1,000 shall be charged for such
consultation. This fee shall be credited to the account of the potential purchaser
should it become an Added Party at a later date. The Trustee shall make
available to interested parties, for the reasonable cost of duplication, a copy of
this Agreement.
9.5 Some Participating Owners may have entered into related Agreements,
amendments by unanimous consent only
It is acknowledged that some Participating Owners may have, or will, enter into
distinct agreements respecting the front-ending of costs, which are the subject of
cost sharing pursuant to this Agreement. Nothing shall preclude such
arrangements, provided that they do not in any way prejudice the rights of any
party to this Agreement. Should. there be a conflict between this Agreement and
any other agreement entered into among the Participating Owners, the
provisions of this Agreement shall prevail. The parties hereto may only amend
this Agreement by further agreement in writing executed by all parties hereto.
9.6 Notices
Any notices to be given under the terms of this Agreement shall be in writing and
shall be given to the applicable party by personal service or by mailing by first
class mail with postage fully 'prepaid or by facsimile at the number herein set
forth at Schedule "A-3" provided that, where mailed, it shall be deemed to be
received on the fifth Business Day following the date of mailing.
9.7 Registration of Notice of Agreement
The Participating Owners agree that a Notice of this Agreement (in the form
prescribed by the Trustee) shall be registered against each Participating Owner's
lands as described at Schedule "A-1" to ensure that this Agreement is binding on
the Participating Owners and their respective successors and assigns. The
Trustee will, within ten (10) Business Days of receipt of a request to do so by a
non-defaulting Participating Owner, provide discharges of such registered Notice
in respect-of lands to be conveyed to Approval Authorities and postponements to
easements to and servicing agreements with Approval Authorities as well as
postponements to a Participating Owner's land financing security. In addition, it
is agreed that at the time that the Trustee issues a release letter to the
Municipality confirming a. Participating Owner's compliance with this Agreement
in respect of a Development Plan, the Trustee shall concurrently deliver to such
Participating Owner a release of this Agreement in e-registrable form for that
Development Plan for which such release letter has been issued.
1 n Page - 45 -
L Time shall be of the essence of this Agreement and every part thereof.
9.9 No Partnership
Nothing herein contained shall be deemed or construed so as to make any of the
parties hereto partners with one another.
9.10 Agreement may be Executed in Counterpart
This Agreement may be executed in counterparts, i.e. it shall not be necessary
for all of the parties to have signed the same copy hereof.
9.11 Agreement to be Binding Despite Anticipated Adjustments
The parties acknowledge that this Agreement is intended to be binding
notwithstanding that the calculations herein will require adjustment on an ongoing
basis, all of which are to be incorporated pursuant to the terms herein.
9.12 Covenants Run with the Participating Owners' Lands
The parties. acknowledge that the covenants herein contained shall be
considered covenants, which run with their respective lands.
9.13 Agreement Binding on Signatories
Notwithstanding the parties named herein. and the definition of "Participating
Owners" set out in Section 1.1(00), it is acknowledged and agreed that this
Agreement shall be binding only upon those parties who have executed this
Agreement herein below (hereinafter called "Original Signatories"). In the event
that a party named in the Agreement but who is not one of the Original
Signatories subsequently elects to execute this Agreement, then such party shall
execute this Agreement and thereupon such party and the lands in Duffin
Heights owned. by such party shall be bound by all terms and provisions of this
Agreement as fully as if such person had originally executed this Agreement, and
the schedules attached hereto shall be amended accordingly.
IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement and
the other parties have hereunto set their hands and seals as of the day, month and year
first above written.
MATTAMY (BROCK ROAD) LIMITED
Per.
Per:
oc 9 ~•.~61L M - r'• L A-rJ0 .
I/we have authority to bind the corporation
COUGS (TILLINGS) LIMITED
Per.,
Per:
I/we have authority to bind the corporation
COUGS (DERSAN) LTD.
Per:
Per:
I/we have authority.to bind the corporation
Page -.46 -
183
COUGS (BROCK ROAD) LTD.
Per:
Per:
I/we have authority to bind the corporation
LEBOVIC ENTERPRISES LIMITED
Per: r "
i ) ebou~ f~Yc ,
Per:
I/we have authority to bind the corporation
ONTARIO REALTY CORPORATION as
agent on behalf of HER MAJESTY THE
QUEEEN IN RIGHT OF ONTARIO- AS
REPRESENTED BY THE MINISTER OF
ENERGY AND INFRASTRUCTURE
Per:
Per:
I/we have authority to bind the corporation
THE CORPORATION OF THE CITY OF
PICKERING
Per:
Per:
I/we have authority to bind the corporation
DUFFIN HEIGHTS LANDOWNER GROUP
INC.
Per:
Per:
I/we have authority to bind the corporation
Page - 47 -
184
SCHEDULE "A-1"
LEGAL DESCRIPTIONS OF THE PARTICIPATING OWNERS' LANDS
MATTAMY LANDS (PIN 26408-0390)
Part of Lots 17 and 18, Concession 3, Pickering, Regional Municipality of Durham,
Designated as Part 1 on Plan 40R-25281, PIN: 26408-0390
COUGS-TILLINGS LANDS
Part Lot 20, Concession 3, Pickering, Regional Municipality of Durham
COUGS-DERSAN LANDS
COUGS-BROCK ROAD LANDS
Part of Lots 38 and 39, Pickering, Regional Municipality of Durham, on Plan 40R-6934.
ORC LANDS
Part of Lot 18, Concession 3, Pickering, Regional Municipality of Durham, Designated as
Part 1 on Plan 40R-26408
LEBOVIC LANDS
PIN #26408-0404 - Part of Lot 18, Concession 3, being Parts 3, 4, 5, and 6, Plan 40R-
26265, City of Pickering, Regional Municipality of Durham
PIN #26408-0403 - Partof Lot 18, Concession 3, Pickering, part 2 on Plan 40R-26265,
City of Pickering, Regional Municipality of Durham
PIN #26408-0402 - Part Lot 18, Concession 3; Pickering, Part 1 on 40R-26265,
Pickering, Regional Municipality. of Durham
PIN #26383-0784 - Part of Lot 20, Concession 3, Pickering, being Part 1, Plan 40R-26221,
City of Pickering, Regional Municipality of Durham
PICKERING LANDS
I
Page 48
1 85
SPlan Depicting Participating Owners
Lands within Duffin Heights
_-=~X17NTS5A]ID7SFt__"~:`_" ✓ ~
LEBOVIC
RRc 1 1 , / 1
i me Lworo j/' I ~
/ 1 t
~ICmFAlOFl18 ; \ o
' ~ ~ ono /
i LEBOVI o mm~~
oRc %
MAITAMY \
LIMITED (BROCK ROAD)
r 1 1 11 one LIMITED
1 f ~
L 1'1 IE'K~E~G ERSAN~ lumw.m \ ~~.C
;y' N7QRFO ~ _
C,
1~ ~F n
(fn I f ~ j PICKERING
~ ~ 1~ J 1 1
1
a
71~1. C,01.9-1
1
o~pvs~°p0.
Hip
LAND OWNERSHIP
MAP-LEGEND
PROPERTY LINES -
DUFFIN HEIGHTS
DEVELOPMENT BOUNDARY
PARTICIPATING LANDS
MATTAMY IBROCK ROADI -
LIMITED -
COUGS 1IM17ED
ONTARIO REALTY
CORPORATION
LESOVIC ENTERPRISES
CITY OF PICKERING
N °.r - rA n >m °r s~ramwom~aup.wR.oup .
L Page - 49 -
1 8 6 SCHEDULE "A-3"
CONTACT PARTICULARS FOR OWNERS AND TRUSTEE
MATTAMY (BROCK ROAD) LIMITED
c/o Mattamy Development Corporation
2360 Bristol Circle
Oakville, Ontario L6H 6M5
Tel: 905-513-3651
Fax: 905-513-3652
Attention: Rodger Miller
Email: Rodger.miller@mattamycorp.com
COUGS (TILLINGS) LIMITED
COUGS (DERSAN) LTD.
COUGS (BROCK ROAD) LTD.
c/o Coughlan Homes
2700 Audley Road North
Ajax, Ontario L1Z 1T7
Tel: 905-427-7703 ext. 228
Fax: 905-427-1611
Attention: Scott Collins
Email: scollins@coughlanhomes.com
ONTARIO REALTY CORPORATION
1 Dundas Street West
Suite 2000
Toronto, Ontario M5G 21-5
Tel: 416-327-3937
Fax: 416-327-3942
Attention: Ash Kothiyal
Email: ash.kothiyak@orc.gov.on.ca
Attention: Graham Martin
Email: graham.martin@ontariorealty.ca
LEBOVIC ENTERPRISES LIMITED
12045 McGowan Road
Stouffville, Ontario L4A 8A2
Tel: 905-640-7361
Fax: 905-640-7369
Attention: Lloyd Cherniak
Email: Ichemiak@lebovic.ca
THE CORPORATION OF THE CITY OF PICKERING
One the Esplanade
Pickering, Ontario L1V 6K7
Tel: 905-420-4617
Fax: 905-420-7648
Attention: City Clerk
Email: clerks@cityofpickering.com
DUFFIN HEIGHTS LANDOWNERS GROUP INC.
c/o Sernas Group
110 Scotia Court, Unit 41
Whitby, Ontario L1 N 8Y7
Tel: 905-686-6402
Fax: 905-432-7877
Attention: Michael McAllister
Email: mmcallister@sernasgroup.com
Page - 50 -
187
SCHEDULE "A-4"
RECONCILIATION OF HISTORICAL ADMINISTRATIVE COSTS
TO BE PROVIDED BY REG WEBSTER NEXT WEEK (March 5110)
Page 51 A
188
SCHEDULE B-1
Plan Depicting Location of Community Services
/ sch 12 / L
' %w~ ~ i I~ j [,Dxewew+a hrRene' SW N{3
III J
3-4
00
~J l I J SWIM 2 oCOILIN a {
\ SWIY-4\
1, ~ / 1 - \ ~
Rn~+o /I I I I f'1 ~ css
LEGEND
DFRSAN
PROPERTY ONES O WATER BOOSTER STATION • SLViFR
DERSAN SEWER
r r DUFRN HEIGHTS BIOSWAIE '
DEVELOPMENT BOUNDARY - ...R...r STORM SEWER OVERSIZING
• VC VILLAGE GREEN O SANITARY PUMPING STATION
r•~ r
® PARK COMMUNITY ROADS TRAIL EMENSION
0 OIL 6 GRIT SEPARATOR CENTRAL DUFFIN COLLECTOR
PARKETTE SEWER
CLEAN WATER PIPE 000000 WATER LOOPING
® SCHOOL X CREEK IMPROVEMENTS INFILTRATION TRENCH
swA+I swNi PorD -
FORCFMMN
COMMUNITY USE FM
ROAD FRONTAGE
Page 51 B
SCHEDULE T-2' 189
plan Depicting Location of Community Lands
I ~ r
zAt
'-•me'n'An- -
4. ~7I i ~ ~ ~ schopl2 i. ~\l..l
r r,I' ~i
5 3
NOR
f
SWM%//'
SWM 2 ~~paa~oDa ( Ni
~ II
SWMme. S
~ovA~O°a ~ I
Nvpao
I 1 I f~
LEGEND
PROPERTY LINES COMMUNITY ROADS
DUFFIN HEIGHTS O WATER BOOSTER STATION
DEVELOPMENT BOUNDARY
•VG VILLAGE GREEN * BIOSWAIE ^
® PARK SANITARY PUMPING STATION .
PARKETTE
® SCHOOL
swMl sWM POND
Opgy~ COMMUNITY USE
ROAD FRONTAGE
N wr - M n lM n. w•wm.r~mewu...n
9 0 Page - 52 -
SCHEDULE"C"
CONSULTING ENGINEER'S COST SHARING SCHEDULES
(TO BE PREPARED AND APPENDED AT A LATER DATE)
TO BE PROVIDED BY REG WEBSTER WITHIN APPROX. 3 WEEKS (MARCH 22110)
Page - 53 -
191
SCHEDULE "D"
LETTER OF CREDIT FORM
LETTERHEAD OF SCHEDULE "A" CANADIAN BANK
Trustee under the DUFFIN HEIGHTS DEVELOPERS GROUP COST SHARING
AGREEMENT
Dear Sir(s) and Mesdames:
We hereby authorize you to draw on the (name of the bank) for the account of
our customer (name of Group Member) up to an aggregate amount of $
available upon demand.
Pursuant to the request of our customer, the said (name of Customer) we (Name
of bank) hereby establish and give to you an irrevocable Letter of Credit in your favour in
the total amount of $
which may be drawn on by you at any time and from time to time upon written demand
for payment made upon us by you which demand we shall honour without enquiring
whether you have a right as between yourself and our said customer to make such
demand and without recognizing any claim of our said customer. Partial demands for
payment are acceptable.
Provided however that you are to deliver to (name and address of bank) at such time as
a written demand for payment is made upon us your written confirmation that monies
drawn pursuant to this Letter of Credit are to pay obligations arising under the DUFFIN
HEIGHTS DEVELOPERS GROUP COST SHARING AGREEMENT made between inter
alia various owners of land in the City of Pickering described in the said agreement, as
DUFFIN HEIGHTS DEVELOPERS GROUP; and to deliver also the original of this Letter
of Credit for our endorsement of any payment thereon.
This Letter or Credit will be for an initial period of one year, which will expire on
the day of 20, and you may call for payment of the full amount outstanding under
this Letter of Credit at any time prior to that date.
It is a condition of this Letter of Credit that it shall be deemed to be automatically
extended without amendment for one year from the present or any future expiration date
hereof unless thirty (30) days prior to any such date we shall notify you in writing that we
elect not to consider this Letter of Credit renewed for any such additional period. Upon
receipt by you of such notice you may draw hereunder by means of your demand
accompanied by your written confirmation that the amounts drawn will be retained and
used by you to meet obligations arising under and in accordance with the 'DUFFIN
HEIGHTS DEVELOPERS GROUP COST SHARING AGREEMENT and any amount not
so drawn shall be deemed released.
The drawings under this stand-by Letter of Credit are to state on their face that
they are drawn under (name of bank) stand-by Letter of Credit mentioning its number
and date.
DATED the day of .20
Page - 54 -
1 9 2 SCHEDULE "E"
MEDIATION RULES
1. Selection of Mediator
The Applicant and Respondents shall have five (5) Business Days from the
Submission Date to agree upon a mutually acceptable neutral person not affiliated with
any one or more of the Parties (to be referred to as the "Mediator"). If no Mediator has
been selected within such time, the Applicant and Respondents agree jointly to request
that Southwestern Ontario Dispute Management Centre (in Mississauga, Ontario) or
another mutually agreed upon provider of mediation services supply, within three (3) ,
Business Days of the expiry of the five (5) Business Day period above, a list of potential
candidates to be the Mediator with qualifications as specified by the respective Parties in
the joint request. Within two (2) Business Days of the receipt of the list, the Applicant
and each Respondent shall independently rank the proposed candidates and shall
simultaneously exchange. rankings, and shall appoint as the Mediator the individual
receiving the highest combined ranking who is available to serve in the role of Mediator.
2. Time and Place for Mediation
In consultation with the Mediator, the Applicant and the Respondents shall
promptly designate a mutually convenient time and place for the mediation and, unless
circumstances require otherwise, such time shall not be later than ten (10) Business
Days after the selection of the Mediator.
3. Summary of Views
At least forty-eight (48) hours prior to the first scheduled session of the
mediation, the Applicant and each Respondent shall deliver to the Mediator and to each
other Party involved in the dispute a concise written summary of its views regarding the
facts and issues of the Dispute. No such written summary shall be longer than five (5)
pages in length.
4. Staffing at Mediation
In the mediation, counsel may represent the Applicant and each Respondent. In
addition, the Applicant and each Respondent may bring such additional persons (not
exceeding five (5) in number as needed to respond to questions, contribute information
and participate in the mediation.
5. Conduct of Mediation
The Applicant and the Respondents, in consultation with the Mediator will agree
upon a format for the. mediation designed to ensure that the Mediator and each
respective Party have an opportunity to hear oral presentations of each Party's views on
the matter of the Dispute, and that each Party will attempt to resolve the Dispute with the
assistance of the Mediator. To this end, the Mediator is authorized to conduct both joint
meetings and separate private caucuses with the Applicant and the Respondents in
accordance with the agreed upon format for the mediation.
6. The Mediator's Views
Any opinions or recommendations of the Mediator shall not be binding on any
one or more of the Applicant and Respondents.
7. Termination of Procedure
The Applicant and each Respondent agrees to participate in the mediation to its
conclusion (as designated by the Mediator or by agreement between the respective
Parties). The Parties agree not to take any action in relation to the Dispute prior to the
conclusion of a ten (10) calendar day post-mediation period but commences on the day
after the conclusion of the mediation.
8. Fees of Mediator. Disqualification
The Applicant and the Respondents shall share the fees of the Mediator equally.
i
Page - 55 -
193
The Mediator shall be disqualified as a witness, consultant, expert or counsel for the
Applicant or any of the Respondents with respect to the matters of the Dispute and any
related matters.
9. Confidentiality
All mediations shall be confidential and no stenographic, visual or audio records
shall be made of any one of them. All conduct, statements, promises, offers, views and
opinions, whether oral or written, made in the course of the mediation by any Party, any
Party's agent, employee, representative or other invitee and by the Mediator (who will be
the Applicant's and Respondents joint agent for the purposes of the mediation) shall. be
held strictly in confidence. Any conduct, statements, promises, offers, views and
opinions shall not be discoverable or admissible for any purposes, including
impeachment of any witness in any litigation. or other proceeding involving any one or
more of the Applicant and Respondents, and shall not be disclosed to anyone who is not
an agent, employee, expert, witness, or representative of the Applicant or a Respondent;
provided however, that evidence otherwise discoverable or admissible is not excluded
from discovery or admission as a result of its use in the mediation.
Page - 56 -
1 9 4 SCHEDULE "F"
ARBITRATION RULES
10. Negotiation of Arbitration Procedures
Upon the failure of the Applicant and Respondents to negotiate or mediate their
Dispute, the Applicant and Respondents will meet forthwith to negotiate in good faith
any mutually agreeable changes in the contract-to-arbitrate and the rules of arbitration
which are here adopted, in an effort reasonably to expedite that arbitration process and
otherwise to fit the process and its burdens to the dispute and the values at risk. Unless
altered by the agreement of the Applicant and each Respondent, or if the Applicant and
Respondents have failed to meet to negotiate changes in the contract-to arbitrate within
fourteen (14) calendar days following the conclusion of the respective mediation, the
arbitration shall proceed in accordance with the procedures and rules set in this
Schedule.
11. Composition of Arbitral Tribunal
The arbitration tribunal shall consist of one (1) arbitrator appointed by mutual
agreement of the Applicant and the Respondents or, in the event of failure of the
Applicant and the Respondents to agree within twenty (20) calendar days, any Party
involved in the dispute may apply with notice to a judge of the Ontario Superior Court , or
its successor, to appoint an arbitrator. The arbitrator shall be qualified by education and.
training to pass upon the particular matter to be decided. The arbitrator selected or
appointed in accordance with this paragraph shall be referred to in this Agreement as
the "Arbitrator".
12. Time of the Essence
The Arbitrator shall be instructed that time is of the essence in proceeding with
his or her defection of the Dispute.
13. Jurisdiction of Arbitrator
The Arbitrator shall have the jurisdiction to deal with all matters relating to a
Dispute including, without limitation; the jurisdiction:
(a) to determine any question of law or of equity;
(b) to determine any question of fact, including questions of good faith,
dishonesty or fraud;
(c) to determine any question as to the Arbitrator's jurisdiction:
(d) to order Applicant or one or more Respondents, to furnish further details,
whether factual or legal, of that Party's case;
(e) to proceed in the arbitration notwithstanding the failure or refusal of any
Party to comply with the rules of arbitration set out herein or agreed to
between the Applicant and Respondents, or with the Arbitrator's orders or
directions or to attend any meeting or hearing, but only after giving that
Party written notice that the Arbitrator intends to do so;
(f) to receive and take into account such written and oral evidence tendered
by the Applicant or one or more Respondents as the Arbitrator
determines is relevant, whether or not admissible in law;
(g) to make one or more interim awards including, without limitation, orders to
secure any amount relating to the Dispute; and
(h) to order the Applicant and/or one or more of the Respondents to produce
to the Arbitrator and to each of the other Parties involved in the Dispute
for inspection, and to
supply copies of any documents or classes of documents in their possession,
power or control that the arbitrator determines to be relevant.
14. Rules for Arbitration
Page - 57 - C
The Applicant and the Respondents will agree, in consultation with the Arbitrator, 9 5
on rules for the arbitration. Absent agreement to the contrary, the following rules,
designed to save time and expense for the parties, will apply:
No Interference, Arbitral Award Final
(a) The Applicant and each Respondent acknowledges and agrees that it
shall not apply to the courts of the Province of Ontario or of any other
jurisdiction to attempt to enjoin, delay, impede or otherwise interfere with
or limit the scope of any arbitration or the powers of the Arbitrator, and
the award of the Arbitrator shall be final and conclusive and there will be
no appeal therefrom whatsoever to any court, tribunal or other authority
provided, however, that the foregoing will not prevent the Applicant or a
Respondent from applying to the courts of the Province of Ontario for a
determination with respect to any matter or challenge provided for -in the
Arbitration Act, 1991 (Ontario), as amended.
Pleadings
(b) Within thirty (30) days of the appointment of the Arbitrator, the Applicant
must deliver to each Respondent and the Arbitrator a written statement
(the "Claim") concerning the Dispute and the material facts upon which it
intends to rely;
(c) If the Applicant fails to deliver a Claim within the time limit referred to in
subsection 5(a) of this Appendix, the Arbitrator must terminate. the
arbitration proceedings and the Claim deemed to be null and void.
(d) Within thirty (30) days after the delivery of the Claim, each Respondent
may deliver to the Applicant and the Arbitrator a written response (the
"Defence Statements" or, individually, a "Defence Statement") setting
forth, with particularity, its position on the Dispute and the material facts
upon which it intends to rely and may each also deliver to the Applicant
and the Arbitrator a counter-claim (the "Counterclaims" or, individually, a
"Counterclaim") setting forth, with particularity, any additional Dispute for
the Arbitrator to decide.
(e) If a Respondent fails to deliver a Defence Statement within the time limit
referred to in subsection 5(c) of this Schedule, the Arbitrator shall
continue the proceedings without treating such failure in itself as an
admission of the Applicant's allegations.
(t) Within ten (10) days after delivery of the Defence Statements or the
expiry of the period referred to in subsection 5(c) of this Schedule, the
Applicant may deliver to the Respondents and the Arbitrator a written
reply to the Defence Statement (the "Reply'), setting forth, with
particularity, its response, if any, to the Defence Statements.
(g) Within thirty (30) days after the delivery of a Counterclaim, the Applicant
may deliver to the respective Respondents and the Arbitrator a defence to
such Counterclaim (a "Defence to Counterclaim"). If the Applicant fails to
deliver a Defence to Counterclaim within such thirty (30) day period, the
Arbitrator shall continue the arbitration proceedings without treating such
failure in itself as an admission of the respective Respondent's
allegations set forth in that Counterclaim.
(h) Within ten (10) days after the delivery of a Defence to Counterclaim, the
Respondent in respect of whose Counterclaim the Defence to
Counterclaim has been delivered may deliver to the Applicant and the
Arbitrator a reply to such Defence to Counterclaim (a "Reply to Defence
to Counterclaim").
(i) Every Counterclaim shall be deemed to be a submission to the Arbitrator
already appointed.
0) No Claim, Defence Statement, Counterclaim, Defence to Counterclaim
or Reply to Defence to Counterclaim shall be more than five (5) pages in
length;
Page - 58 -
1 ? V Document Discovery
(k) Each Party will provide to the others access to any documents that may
be relevant to the arbitration. Each Party will also provide to the others a
list and copies of up to (but not exceeding) fifteen (15) documents that the
Party intends to rely on at the arbitration.
Oral Discovery
(1) Each Party will be entitled to oral discovery of the other Parties if it deems
it appropriate. Each Party may only discover the another Party for a
maximum of three (3) hours. Any questions refused will be put to the
Arbitrator for the Arbitrator's determination as to whether the questions
are appropriate and relevant, and the Parties will answer all questions
which the Arbitrator has determined are appropriate and relevant;
Meetings
(m) The Arbitrator will determine the time, date and location of meetings for
the arbitration and will give the Applicant and Respondents at least
fourteen (14) days priorwritten notice of such meetings;
(n) All proceedings and the making of the award shall be in private;
(o) The Applicant and Respondents may be represented or assisted by any
individual during the arbitration. Where a Party is represented by another
Person, such Party will provide notice in writing of such representation to
the other involved Parties and to the Arbitrator at least five (5) days prior
to any arbitration
(p) The first arbitration meeting must be held within twenty-eight days of the
expiry of the pleadings procedure set forth in this Section of. this
Schedule.
(q) At the arbitration meetings, opening arguments will be limited to one half
hour per Party;
(r) Each party may produce up to two (2) witnesses for direct examination.
The total time permitted for the direct examination of witnesses (whether
one or two are produced) will be two hours. The total time permitted for
cross-examination of witnesses will also be a total of two (2) hours for
each Party;
(s) Hearsay evidence will be admissible and its weight will be determined by
the Arbitrator;
(t) Each Party may introduce any of its fifteen (15) documents through either .
of its witnesses.
The other Party or Parties may, if appropriate, challenge the authenticity of any
document produced through these witnesses;
(u) Closing arguments will be limited to one (1) hour for each Party;
Decision of Arbitrator and Award of Costs
(v) Each arbitration award shall be given in writing, shall contain a recital of
the facts upon which that award is made and the reasons therefore, and
shall be final and binding on the Applicant and the Respondents, not
subject to any appeal, and shall deal with the question of costs of the
arbitration and all matters related thereto. Each award shall include an
award of interest from the bate of.and damages for breach or other
violation of the contract, and from the date of the award until paid in full,
at a rate to be fixed by the Arbitrator, but in no event less than the rate
prescribed for judgments of the Ontario Superior Court or its successor.
In determining the allocation between the Applicant and Respondents of the
costs of the arbitration, including the professional fees of the Arbitrator and the
administrative costs associated with the arbitration, the Arbitrator may invite
Page - 59 -
197
submissions as to costs and may consider, without limitation, each Party's efforts
to resolve the Dispute through negotiation and mediation, and any settlement
offers made (including settlement offers made during the course of the
arbitration). If the Applicant or one or more of the Respondents has refused to
participate in negotiations or mediation (or has demanded pre-conditions to
negotiating or mediating), there shall be a presumption that solicitor,and client
costs should be awarded against that Party refusing to participate, regardless of
the outcome of the arbitration.
Enforcement of Arbitral Award
(w) Judgment upon an award rendered may be entered into any court having
jurisdiction thereof or having jurisdiction over any one or more of the
Applicant and Respondents, or application may be made to such a court
for judicial recognition of the award or an order for the enforcement
thereof, as the case may be.
Costs of Enforcement
(x) All costs, fees or taxes incident to enforcing an arbitral award shall, to the
maximum extent permitted by law, be charges against the Party resisting
such enforcement.
Disclosure/Confidentiality
(y) All information disclosed, including all statements made and documents
produced in the course of the arbitration shall be held in strict confidence
and no party may rely on, or introduce as evidence in any subsequent
proceeding, any admission, view, suggestion, notice, response,
discussion or position of either the Applicant or one or more of the
Respondents or any acceptance of a settlement proposal or
recommendation for settlement made during the course of the arbitration,
except
(i) as required by law, or
(ii) to the extent that disclosure is reasonably necessary for the
establishment or protection of a Party's legal rights against a third
Party or to enforce the award of the Arbitrator or to otherwise protect
that Party's rights under these rules of arbitration.
Miscellaneous
(a) Nothing contained in these rules of arbitration prohibits a Party from
making an offer of settlement relating to a Dispute during the course of an
arbitration.
(b) The language of the arbitration shall be English.
Page - 60 -
198 SCHEDULE"G"
TERMS OF REFERENCE FOR APPRAISALS TO
DETERMINE ACREAGE LAND VALUE
Assignments' require compliance with the Canadian Uniform Standards of Professional
Appraisal Practice (CUSPAP) of the Appraisal Institute of Canada.2 In addition to
compliance with CUSPAP, in each report the appraiser must provide the following:
Purpose of the Assignment or Type of Opinion Requested
The purpose of the appraisal is to determine the per acre market value of a
typical parcel of serviced development land in Duffin Heights.
Intended Use of the Appraisal
The appraisal will be used to adjust the Acreage Land Value pursuant to the
Duffin Heights Developers Group Cost Sharing Agreement.
Intended User(s)
The intended user are the non-defaulting parties to the Duffin Heights
Developers. Group Cost Sharing Agreement from time to time (the "Group").
General Guidelines
The Group will evaluate proposals on a weighted basis: (1) Total Fee Including
Disbursements - 75% weighting; (2) Committed Due Date, Implementation &
Methodology -.25% weighting.
Proof of (1) Professional Errors & Omissions Liability Insurance (2) Commercial
General Liability Insurance must be current prior to awarding work. The successful
Proponent will provide to the Group an updated Certificate of Insurance.
The appraiser will provide an electronic copy.of the preliminary Draft report in PDF
format within the specified time period to be reviewed by the Group. The Appraiser shall
also supply a signed electronic copy of the Final version of the .report and one signed
hard copy.
Please Note: for concurrent appraisals, in the event of a value differential exceeding
10%, the appraisers may be required to exchange draft appraisal reports and consult
with each other.as to whether there is common ground for agreement on the facts and
assumptions underlying the respective appraised values. To the extent that the
appraisers are in agreement, the respective draft valuation results would then be
modified accordingly.
Property-Specific Requirements
The Group's property-specific requirements will require the appraiser to include some or
all of the following, as applicable:
• Identify the property being appraised (legal description, municipal address,
location)
Assessment Roll Number, Assessment and Taxes (if available)
• Property Identification Number (PIN)
Assignment is defined as "a valuation service provided as a consequence of an agreement between
an appraiser and a client".
z CUSPAP can be viewed and downloaded from the Appraisal Institute of Canada website at
www.aicanada.ca/e/resourcecent6r standards.cfm.
Page - 61 - 9 9
• History of the property, including any sales and/or listings of the property
during the minimum 3-year period prior to the effective date of the appraisal
• Identify and define the property rights being appraised (fee simple, leased fee,
leasehold)
• Effective date of the appraisal (current date, prospective date, retrospective
date)
• Definition of value, including source of definition
• Physical description of the parcel/site (dimensions, size, configuration,
topography, access)
• Photographs, site plan, survey, aerial photo, etc., of the property
• Physical description of the improvements (dimensions, size, use, functionality,
condition, age, building materials, equipment)
• Building plans, sketches, etc, of the property
• Title Search with a copy of the abstract included in the appraisal report
• Summary of any easements, restrictive covenants, leases, etc., registered
against title
• Reference Plans, Plans of Subdivision or Surveys registered on title
• Type and adequacy of services
• Adverse environmental factors on or off the property
• Lease(s) synopsis
• Land Use Controls (zoning, site-speck by-law, official plan, secondary plan,
etc.) and provisions (setback requirements, parking requirements, height
restrictions, density, coverage, etc.), including statement of compliance or non-
compliance of the subject property
• Definition of Highest and Best Use, including source of definition, and analysis
and statement of Highest and Best Use, taking into consideration any potential
or prospective changes in land use regulations.
• Any other property-specific factors (legal, physical, economic, etc.) considered
relevant to the assignment.
Scope of Work
A Scope of Work section must be included in every report disclosing the type and extent
of research, and analysis conducted in the preparation of the assignment in the context
of the Intended Use of the appraisal. The disclosures should address the following, as
applicable to the Intended Use.
• Municipal, Provincial and Federal -governmental agencies/departments and
Crown Corporations contacted, including names and phone numbers of contacts
• Non-governmental companies contacted or retained to assist in the preparation
of the assignment, including names and phone numbers of contacts
• Studies and reports relied upon in the preparation of the assignment
(environmental audit, building condition audit, planning report, etc.)
• Market analysis, consistent with the Intended Use, discuss relevant macro- and
micro-market conditions, trends and other factors that impact value of the subject
property, provide the Group with an awareness of property and market risks that
are pertinent to the subject.
• Sources of transactional data relied upon (Marsh Report, RealTrack, RealNet,
Geowarehouse, MLS, in-house records, trade publications, other professionals,
etc.); geographic (market) area searched; and time-frame covered
• Confirmation. of` transactional data in the Land Titles/Registry Office (Disclosure
also required if transactional data not confirmed in the Land Titles/Registry
Office)
• Physical inspection of the subject property, including extent and date(s) of
inspection (Disclosure also required if subject property not inspected,
accompanied by an explanation)
• Physical inspection of the comparable sales and/or leases, and sale and/or lease
offerings, including extent of inspection (Disclosure also required if comparables
not inspected, accompanied by an explanation)
• Methods and techniques relied upon in reaching the opinions of value* or
conclusions, including appropriateness in achieving assignment objectives
• Adverse environmental influences evident either on or off the property
• Any other factors (legal, physical, economic, etc.) considered relevant to the
proper completion of the assignment
Page - 62 -
200
Special Case - Non-viable Parcel/Site
A parcel/site that is landlocked and/or of a size and configuration for which there is no
independent highest and best use must be appraised in contribution to an adjoining
property (i.e., the LargerParceo in its highest and best use. Depending on the locational
attributes of the subject property, there may be more than one Larger Parcel, and a
requirement for a value opinion in contribution to each adjoining property.
Comparable Sale/Listing Summary Sheet
A separate summary sheet must be provided for every comparable sale/listing relied
upon in developing an opinion of value for the subject property. If a sales transaction is
more than one year old, the appraiser will explain why it has been included in the
analysis as well as the economic and market conditions under which it occurred.
The summary sheet for each comparable sale/listing should include the following list of
items, as applicable:
• Address and/or Location (with Photograph)
• Sale Date/Registration Date
Instrument/Document No.
• Legal Description/Property Identification Number (PIN)
Vendor
• Purchaser
• Source of Data and Contact (name and/or company and telephone number)'
• Type of property and use
Building area
• Land area, including dimensions
• Availability of Services
• Income particulars
• Zoning category, Official Plan and/or Secondary Plan designations
• Sale Price, including details of any existing and vendor-take-back
mortgages/charges. For a Listing provide Asking Price
• Days on Market, if available
• Provide appropriate physical and/or economic unit(s) of comparison (price per
acre, price per square foot of land/building, price per square foot of permitted
density, gross income multiplier, overall capitalization rate, discount rate, etc.)
• Cash-equivalent Sale Price (atypical financing must be adjusted to a cash-
equivalent amount)
• Any environmentally sensitive and/or undevelopable land must be identified and
accounted for in the analysis of the transaction
• A "remarks" section providing a brief narrative of the relevant attributes of the
comparable (i.e., legal, physical, economic, etc.)
• The rationale employed should reflect the way active market participants would
approach this valuation exercise.
Comparable Sale/Listing Location Map
A map showing the location of the comparable sales/listings in relation to each other and
the subject property must be included with every appraisal report.
Comparable Sale/Listing Adjustment Grid
The adjustment grid may be qualitative or quantitative, but should summarize the
appraiser's overall adjustment factors of each sale in relation to the Subject. From the
grid a final analysis of the value/value range can be achieved. An adjustment must be
included with every appraisal report.
Preliminary Completion Date for Delivery of Draft Report
n A reasonable effort must be made to confirm the particulars of the transaction with a party to the
transaction or a party with knowledge of the transaction. If no "contact" is available indicate "none".
Page - 63 -
201
A "draft report must be emailed or delivered/couriered to the Group's identified
representative by the preliminary completion date for the assignment. Failure to
complete an assignment on time may result in a review of your status on the Group's list
of approved consultants. The appraiser is encouraged to contact the Group's identified
representative during the preparation of the assignment should any aspect of the
assignment require clarification and/or additional documentation from the Group„ so as
to facilitate successful and timely completion of the assignment. If there are extenuating
circumstances that preclude completion of the assignment on a timely basis, you must
contact the Group's identified representative responsible for commissioning the
assignment arior to the scheduled preliminary, completion date for further instructions.
Your "draft" report will be reviewed by a Group representative and/or third-party
representative retained to act on behalf of the. Group to ascertain compliance with
CUSPAP and the Group's requirements in the context of the Purpose of the
Assignment/Type of Opinion Requested and Intended Use.
You may be required to discuss your assignment opinions and/or conclusions with an
identified Group representative either by phone or in person.
The Group may request amendments prior to finalizing your "draft" report for a variety of
reasons, including the following:
• Non-compliance with the Group's assignment instructions
• Non-compliance with CUSPAP
• Non-compliance with the Group's assignment requirements
• Errors of commission and/or omission
• Unsupported opinions or conclusions
• Use of inappropriate methods and/or techniques
• Failure to produce credible results
Repeated assignment shortcomings, including untimely assignment completion and
delivery, may be cause for removal from the Group's list of approved consultants.
MA700%701809\agreementlcsa -january 29, 2008,doc
2 2 Page - 64 -
SCHEDULE"H"
FRONT FUNDED OWNER-CONSTRUCTED CORE SERVICES AS PER REGION'S
FRONT-ENDING AGREEMENT
1. Sanitary pumping station to be located within Lands east of Brock Road
2. Sanitary forcemain from the sanitary pumping station to Brock Road
3. Sanitary sewer on Dersan Street from Brock Road to the Central Duffin Collector
Sewer
4. Zone 11 water booster station to be located within the Lands west of Brock Road
I
i
Page 65 2 0 3
SCHEDULE'!'
Plan Depicting Trail Extension from Stormwafier
Management Pond Located on Mattamy Lands
to the Urban Boundary of Pickering (at Ajax)'
ROAD
ate.
;I X •
,l
MATTAMY LANDS
Ali O ; . 1/ i l.f ~S _
O Imo.` 1 I
m
. \`f~,~ i 0 50 X00 50 200 250M
i
TRAIL EXTENSION
.n - rw n w n. wawarasna.e~w.a..
2 0 4 AIRD & BERLIS LLP ATTACHMENT#Z_TO REPORT # - im
Barristers and Solicitors
John Mascarin
Direct: 416.865.7721
E-mail:jmascarin@airdberlis.com
June 22, 2010
Our File No.: 98900
Grant McGregor
City of Pickering
Pickering Civic Complex
One The Esplanade
Pickering ON L1V 6K7
Dear Mr. McGregor:
Re: Duffin Heights Developers Group
Cost Sharing Agreement
We have been retained by the City of Pickering ("City") to advise the City with respect to
the above-noted Duffin Heights Developers Group Cost Sharing Agreement ("CSA"
Background and Materials Reviewed
We have had an opportunity to review the CSA and to meet with Reginald Webster of
Sernas Group Inc. as well as members of City staff to discuss the status and substance of
the document. We have also met with Cam Watson of Watson & Associates Economists
Ltd. who is reviewing the financial and cost-sharing schedules of the CSA.
In addition, we met with yourself and the former City Solicitor, Andrew Allison, to review
the background relating to the development of the lands and the involvement of the City
as both a benefiting landowner in the Duffin Heights Neighbourhood ("Duffin Heights") and
as approval authority for various development approvals under the Planning Act, R.S.O.
1990, c. P.13, as amended. We have also reviewed Report Number PD 41-08 dated
September 29, 2008 to Planning & Development Committee.
Review of CSA from Two Perspectives
We have reviewed the CSA from two perspectives given that the City is both a proposed
signatory and participating owner to the agreement as well as the approval 'authority for
various development approvals in Duffin Heights. The City is a significant landowner
within Duffin Heights. Should it execute the CSA, the City will be a limited participating
front-ending owner under the agreement related to certain storm water management
works.
Brookfield Place, 181 Bay Street, Suite 1800, Box 754 • Tolronto, ON - M51 2T9 • Canada
T 416.863.1500 F 416.863.1515
www.airdberlis.com
i
205
June 22, 2010
Page 2
CSA in General
(a) General Intent of Agreement
The CSA is intended to provide an equitable cost-sharing mechanism for participating
front-ending owners as well as non-participating but benefiting owners within Duffin
Heights in order to distribute the costs related to the provision of community lands and
services, works and facilities.
(b) Use of Cost Sharing Agreements
Developer costs sharing agreements have had a long history in the province of Ontario as
an accepted method for ensuring the provision of required public infrastructure necessary
to service new development as well as the equitable and proportionate distribution of the
capital costs related to the infrastructure construction, installation and provision.
Municipalities typically encourage such agreements among landowners and often
enshrine policies to promote and facilitate such arrangements within their official plans.
We note that Section 11.17 (p)(iii) of the City's Official Plan for Duffin Heights reflects this
principle of equitable cost sharing for benefiting landowners as follows:
11.17 City Council shall,
(p) require, as a condition of site plan, subdivision or any other
development approval, that landowners:
(iii) become a party to the cost sharing agreement for
Duffin Heights or receive an acknowledgement
from the Trustee of the Duffin Heights Landowners
Group Inc. that the benefitting landowner has made
satisfactory arrangements to pay its proportion of
the shared development cost.
(c) Parties to CSA
We reviewed the CSA dated March 19, 2010 as executed by three parties: Mattamy
(Brock Road) Limited, Lebovic Enterprises Limited and Ontario Realty Corporation (ORC).
All three parties are listed as participating owners under the CSA.
As noted, it is intended that the City be a participating owner under the CSA (but limited
as to cost-sharing only with respect to certain stormwater management facilities). The
schedules currently list the City as a Non-Participating Owner. The CSA is also drafted to
incorporate three related companies - Cougs (Tillings) Ltd., Cougs (Dersan) Ltd. and
Cougs (Brock Road) Ltd. (the Cougs companies) - as participating owners. Duffin
Heights Landowners Group Inc! is proposed to be a signatory to the CSA but only as
trustee under the agreement having express functions, duties and responsibilities.
AIRD & BERLIS u P
Barristers and Solicitors
206
June 22, 2010
Page 3
(d) Form of CSA
The CSA appears to be a form of cost sharing agreement that is commonly utilized by the
development industry in Ontario. In general, the CSA sets out various obligations that will
be met by the signatories to the agreement (who are identified as "Participating Owners")
with respect to the provision of community land and community servicing costs. The
Participating Owners agree to up-front the costs of various community services (i.e. local
services for which there is no development charge imposed by the City) which include
community roads, stormwater management facilities, watermains, storm and sanitary
sewers, a looped watermain, water balancing and water infiltration infrastructure as
required by the Environmental Servicing Plan, school site servicing and other services.
Community lands include lands that will be used for public services and include various
easements, stormwater management facilities, community roads, school and various
other lands and interests in lands. Park lands are not included within the definition
Community Land (the obligations of landowners within Duffin Heights with respect to the
dedication of parkland are proposed to be set out in a Master Parkland Agreement).
(e) Purpose of CSA
The overall general intent of the CSA is set out in Section 3.1 whereby Participating
Owners agree to dedicate community land and construct or pay for community services
on behalf of all benefiting owners to allow for the development of all lands within Duffin
Heights. The CSA contains various mechanisms to determine the Participating Owners'
proportionate servicing share of the community servicing costs. Many of the services are
cost-shared on the basis of the proportion of individual developable area over the entirety
of the development areas within Duffin Heights, although other equitable methods are
employed in appropriate cases depending upon the specific service. The same applies.
with respect to the cost-sharing of the community land obligations whereby many of the
land costs are shared on the basis of net developable area.
A summary of the various cost-shared items, the portions to be cost-shared, the basis of
the cost sharing and the front-fund sharing are set out in the "Duffin Heights Landowners
Group - Principles of Cost-Sharing."
Apart from the aforementioned cost sharing provisions, the CSA contains many of the
features that are common with standard cost sharing agreements, including the
requirement for a group trustee and a consulting engineer, the establishment of a
committee to vote ' upon and determine matters, dispute resolution mechanisms and
various general administration provisions (including re-calculation provisions).
(t) Equitable and Proportionate Cost Sharing
Based on our review of the CSA, which has been executed by three sophisticated parties
who are experienced with the land development approval process in Ontario, it generally
provides for an equitable and proportionate distribution of both land servicing and
community land dedication/use costs amongst the Participating Owners and Non-
Participating Owners who own lands that will benefit from the provision of the community
lands and community services.
AIRD & BERETS u.v
Barristers and Solkkors
June 22, 2010 2 0 7
Page 4
Notwithstanding the foregoing, City staff and its consultants have identified three specific
items that need to be clarified or amended in the CSA which relate to the following:
0) specific reference to Section 11.17 (p)(iii) of the City's Official Plan for Duffin
Heights in the recitals and within the CSA so that Non-Participating Owners
may be entitled to obtain clearance from the Trustee upon payment of their
proportionate share of the costs under the CSA;
(ii) a map that clearly sets out or a schedule that lists the benefiting area or
benefiting landowners who are not Participating Owners; and
(iii) the removal of the Cougs companies as signatories and participating owners.
The foregoing issues have been communicated to the Trustee and its solicitor who are
seeking to address the matters to the City's satisfaction. A number of additional but minor
items are also being amended or clarified.
Subject to clarification or an amendment of the CSA to address the above-noted issues, it
is our opinion that the CSA represents a bona fide mechanism to provide and to equitably
distribute the costs of servicing and land use for the community amongst benefiting
landowners, present and future. While it is always possible to challenge and contest any
specific cost-shared item and any individual cost-sharing methodology, it is our view that
the City, as approval authority, should not have any concerns that the CSA is inequitable
or unfair. Mr. Watson's review of the financial and cost-sharing schedules of the CSA and
ultimate conclusions will also inform this aspect.
CSA from City's Perspective as Participating Owner
(a) City's Participation in CSA
We have also reviewed the CSA to discern and analyze it from the point of view of the
City as a proposed Participating Owner. The Report to Planning & Development
Committee - PD-4108 dated September 29, 2008 set out the Duffin Heights Landowner
Group request for the City's participation in the CSA and its contribution to the front-
ending of the costs for storm water management facility #4 and related infrastructure
("SWM 4").
(b) Council Endorsement of Limited Cost Sharing
Recommendation 4 of the aforementioned report provided as follows (which
recommendation was adopted by Council):
That Council endorse in principle entering into a cost sharing agreement
with the Duffin Heights Landowner Group respecting the provision of
infrastructure in the Duffin Heights Neighbourhood and that staff report
back to Council with a report seeking formal authority to execute the cost
sharing agreement and authority to front-fund the costs of the infrastructure
as shown in Attachments #8 and #9 to Report PD 41-08 when the
agreement is in its final form.
AIRD & Bmus up
Barristers and Solicitors
208
June 22, 2010
Page 5
(c) Limited Participation by City
The CSA has been drafted to specifically provide that the City is a Participating Owner but
"for the sole purpose of sharing in the costs related to the construction of the stormwater
management facility and related stormwater management infrastructure that will be
required in conjunction with the services depicted on Schedule "B-1" as SWM 4 which will
benefit land within Duffin Heights that is owned by Pickering" (Recital F to the CSA). It
should be noted, however, that because the City is not sharing in the costs of other
services, it is generally listed as a Non-Participating Owner on the individual schedules in
Schedule "C".
The definition of Participating Owners in Section 1.1(oo) refers to and includes the City but
with the following proviso:
(iii) Pickering shall only be deemed to be a Participating Owner in .
relation to Pickering's SWM4 Obligations and its rights and
responsibilities shall be limited to the express terms contained in
Section 3.26.
"Pickering's SWM4 Obligations" is defined to have the meaning as set out in Recital F to
the GSA. Section 3.26 is entitled "Pickering shall not have any obligations under this
Agreement other than for Pickering's SWM4 Obligations" and the clause sets out that the
City's sole requirement under the CSA is to fund its proportionate servicing costs for
SWM4 and to contribute its share of the community land component required for SWM4.
The clause further provides that the City is not obligated to contribute to the maintenance
of SWM4.
The City agrees that it will not sell any of its lands within Duffin Heights if declared surplus
unless its purchasers agree to be added as a party to the CSA and assume the duties and
obligations of the City with respect to SWM4. This is a common requirement for all
participating owners under cost sharing agreements and is an obligation for all
Participating Owners under the CSA pursuant to Sections 3.15 and 9.4.
(d) City's Financial Obligations under CSA
Based on our review of the CSA as a whole, the City's obligations to participate and to
front-fund as a Participating Owner are limited to the costs related to SWM4 as specified
in Recital F and Section 3.26. The total financial contribution with respect to SWM4 is set
out in Schedule "CS-17" to the CSA (revised to April 30, 2010) and totals $601,084.35, out
of the total $2,947,852.50 cost.
The costs applicable to SWM4 are cost-shared by all Participating Owners based on each
Participating Owners' net developable area as compared to the total net developable area
of all Participating Owners within the tributary area pursuant to Section 3.8(A). The City's
front-funded share of the SWM4 costs are calculated in accordance with the proposal by
Reginald Webster to the former CAO dated July 9, 2008 (being Attachment 6 to Report
Number PD 41-08).
AIRD & BERLIS ua
Barristers and Solicitor -
209
June 22, 2010
Page 6
(e) Approval for City to Enter into CSA
We understand that City staff will be presenting a report to Council seeking formal
authority to enter into and execute the CSA. We note that Recommendation 4 from the
aforementioned report expressly provided that "staff report back to Council with a report
seeking formal authority to execute the cost sharing agreement... when the agreement is in
its final form" (emphasis added).
Unlike the vast majority of contracts which are in a "final" form prior to execution, cost
sharing agreements are unique given that they remain fluid and amenable to modification
following execution. Cost sharing agreements typically remain subject to amendment and
revision even after formal execution. This is required because such agreements
contemplate the incorporation of additional parties and the recalculation of contributions
and reimbursement amounts on an ongoing basis. The principles of cost sharing
agreements are not re-engineered, but the various amounts remain subject to continued
revision. The CSA addresses this aspect of the contractual arrangement in Section 9.11,
which provides as follows:
9.11 Agreement to be Binding Despite Anticipated Adjustments
The parties acknowledge that this Agreement is intended to be
binding notwithstanding that the calculations herein will require
adjustment on an ongoing basis, all of which are to be incorporated
pursuant to the terms herein.
Therefore, the CSA dated March 19, 2010 is very close to the final form (subject to the
City's requested modifications and/or clarifications as noted above), although it is
anticipated by all parties that it will be subject to modification as to calculations. As noted
above, the CSA has presently been executed by three of the Participating Owners and it
is proposed that the City and the Trustee will be executing the CSA. The Cougs
companies may be added as formal signatories if they decide to execute the CSA. Also
as noted, other persons or parties may join the CSA as Participating Owners by becoming
added parties to the CSA.
We would recommend that the current draft of the CSA is suitable to present to Council
for approval subject to such necessary modifications being made to satisfy City staff's
concerns and our aforementioned comments. These modifications are anticipated and
may be approved by the appropriate City staff and the writer in due course.
Conclusions
Based on the foregoing analysis, it ,is our opinion that the CSA represents a fair and
equitable contractual mechanism to distribute the costs related to the provision of required
infrastructure and lands necessary to service Duffin Heights.
We are also of the view that the City's obligations as a Participating Owner under the CSA
fall within the scope of the request for funding as previously agreed to in principle by
Council. The City's obligations to contribute towards both servicing and land costs are
limited to those costs associated with SWM4 at this time.
AIRD & BERLis up
Barrlstera and Sollcltora
210
June 22, 2010
Page 7
We would be pleased to discuss any questions or concerns that you may have with
respect to the foregoing.
Yours truly,
AIRD & BERLIS LLP
John ascarin
JWI
6750860.3
Am & BERus up
Eardste and Sukh s .
7
THE 5ERNA5 GROUP ATrAC-"NT#,.I-.TOREPORT #CplF n
A Member of The Sernas Group Inc.
A=- 11MM 110 Scotia Court T-905.686.6402
RECEIVEDUnit 41 F905.432.7877
Whitby, ON sernasgroup.com
Lt N BY7 211
„l; - 9 2008
July 9, 2008
CITY (JF PICKERING
City of Pickering PLaNNiDEPARTMELPMENT
1 The Esplanade
Pickering, Ontario L1V 5K7
Attention: Mr. T. Quinn
Chief Administrative Officer
Dear Sir:
Geomorphic Sciences Re: Request for Consideration to City Participation
Land Development Engineering Funding of Stormwater Management Facility
and Related City and Regional Infrastructure
Land Development Planning Required for Brock Road Reconstruction
Municipal Engineering Services Duffin Heights Landowner Group
Transportation & Transit Planning City of Pickering
Utility Infrastructure Design Our Project 06456
Water Resources Engineering As you know, the Region of Durham has indicated that the stormwater
management facility (SWM 4) proposed to be located at the north-east corner
of the 3rd Concession (Rossland Road) and Brock Road is to be implemented
immediately in order for the Region to proceed next year with the urbanization
of Brock Road as requested by the City. It should be noted that advancing of
the timing for this facility has been required based on the City's desire to have
the road changed from a rural to an urban (curbs and storm sewer) design. 1
The Duffin Heights Landowner Group (DHLG) is currently co-ordinating the
preliminary design process, has initiated a request to transfer the lands
through the Ontario Realty Corporation, and is meeting regularly with City and
Regional staff, as well as other stakeholders to advance these works.
In addition, the same group has identified certain additional City and Regional
infrastructure, mainly an oversized storm sewer system to accommodate both
the Brock Road R.O.W. as well as the abutting benefiting lands mainly on the
west side of the road, that needs to be installed when Brock Road is
reconstructed such that the road will not have to be re-excavated in -the future.
We have completed a preliminary estimate of these costs which have been
attached for your review. They have been divided into three components:
Part I - being the storm sewer within the Brook Road right-of-way that will be
sized for Brock Road and any adjacent lands that will ultimately outlet to this
sewer
Part ll - being the design and construction cost for the SWM 4 facility
Part III - being the land component of the SWM 4 facility
2/
1 2
City of Pickering
Mr. T. Quinn
July 9, 2008
Page 2
As you can see, these costs are substantive totaling some $5,200,400.
We have also developed a methodology for the sharing of these costs based
on widely accepted cost sharing principles. The summary sheet totals these
shared amounts for each benefiting party.
Given the magnitude of the costs, the DHLG is not prepared to front fund all of
these costs.
If we delete the cost attributable to the City (approx. $1,014,000), the Region
(approx. $1,370,000), and the members of the DHLG that have benefiting
lands ($1,175,000), an amount of $1,641,400 remains for other benefiting
"non-participating" parties.
With respect to the "non-participating" share of $1,641,400, the DHLG may be
prepared to front fund this cost in partnership with the City on the basis of the
City's benefiting area to the total combined benefiting area of the City and
participating landowners under the condition that the full amount ($1,641,400)
will be recovered through the Duffin Heights Cost Sharing Agreement and
distributed to the City and the DHLG on the basis of the front funded
contributions made as payments by the non-participating landowners when
these lands are developed.
On this basis, the City's share of the front funded non-participating landowners
would be - 6.00 ha (City Benefiting Area) _ 6.00 (City Benefiting Area) + 5.64
(ORC Benefiting Area) + 1.76 (Cougs Benefiting Area) (Total 13.4 ha) x
$1,641,400 = $802,000 (rounded).
Therefore the total of the City's share would be - $1,014,000 + $802,000 =
$1,816,000.
Given that the Region needs to have this facility built in 2009 concurrent with
the urbanization of Brock Road, we request a meeting be organized
specifically to address this iturn once you have had an opportunity to review
the information provided herein. If you are available, we recommend that a
meeting be held on Thursday, July 31s` in your offices.
3/
7
21 3
City of Pickering
Mr. T. Quinn
July 9, 2008
Page 3
Please call me if you have any questions on the attached.
Yours truly,
THEE RNAS-G UP INC.
P. ng.
Principal, President
RDW/br
Attch.
cc: City of Pickering, Attn: Mr. N. Carroll, Mr. G. McGregor
Davies Howe Partners, Attn: Ms. K. Beckman
The Sernas Group Inc., Attn: Mr. M. Favit
Duffin Heights Landowner Group:
- Mattamy (Brock Road) Limited, Attn:.Mr. D. Madeira, Mr. R. Miller
- Cougs Investments Limited, Attn: Mr. R. Halliday
- Ontario Realty Corporation, Attn: Mr. G. Martin, Mr. A. Kothiyal
- Lebovic Enterprises Limited, Attn: Mr. L. Cherniak
21 4.
STORM SEWER (PART 1), SWM FACILITY (PART 11) AND
SWM FACILITY LAND (PART 111) COST SHARING SUMMARY
BROCK ROAD, DUFFIN HEIGHTS
BENEFITTING TOTAL COST
LANDOWNER OF WORKS'
790659 ONTARIO LTD. $217,919.76
P. CAMPAGNA DEV. $253,906.51
O.R.C. $796,627.36
CITY OF PICKERING $1,020,400.43
S.W. $158,033.01
CALLERI $71,072.56
WRIGHT $68,887.04
GERBIS $33,166.20
S.S.D.C.S.O.C. $82,838.28
VERNOY $143,344.70
COUGS LTD. $284,937.00
YOON $302,482.35
PISTRITTO ' $392,400.46
CARUSO $26,532.42
REGION OF DURHAM $1,363,359.56
TOTAL $5,215,907.64
* STORM SEWER & SWM POND COSTS INCLUDE 15% CONTINGENCY, 150/6 ENGINEERING
SWM POND LAND COSTS INCLUDE 5% FOR COORDINATION & ADMINISTRATION
STORM SEWER. OVERSIZI NG
.AND. STORMWATER. FACILITY No.4
TOTAL ESTIMATED COST
$ -5,215,000
L Q
OZY,
1 S • r
ORC AND COUGS
BENEFITTING SHARE I o
$ 1,081,000 !
e°
~ j
3
I
'FUTURE _ROAD
°Tr v i II I &EU (opw
pIOtEFNC .
CALLEM
O.Saho
'i,l O se CITY OF PICKERING
/ / FRONT-ENDING SHARE
FOR NON-PARTICIPATING
I , / LANDOWNERS.
REGION OF DURHAM 0.29hacEms Il $785,000
BENEFITTING SHARE j h
$ 1,363,000 laooea sso.c bi
. RE°ON Q RMOr~ 10~
ti D RSAN1o.oae;j Itll',i 0.9,9hovDiu b' -
0.22M
S- EET A« - I I I i .
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DUFFIN HEIGHTS
EXISTING LANDOWNER GROUP
i Ifl Io CEMETERY. FRONT-ENDING SHARE
EY
° I FOR NON-PARTICIPATING
J I ra m Ie LANDOWNERS 000 NDOWNERS
~~iloff r
\~l 05
FUTURE ROAD II . D.53ha
CITY OF PICKERING
N
BENEFITTING•SHARE is °61q"'° m
N f4
$ 1,020,000 °
- : - (e ureter. or me Snnvo Govo hc.).
DUFFIN HEIGHTS 110ScdaCourt T905.886.8402
LANDOWNERS. NET AREA Unit41 F905.432.7877
PERCENTAGE PROPOSED SHARE OF $ 9661000 Whitby, ON semas.com
GROUP
LIN 8Y7
COUGS. 12.100% $116,886 CITY OF PICKERING
DUFFIN HEIGHTS
ORC 48.416% $ 467,699
BROCK ROAD
STORM:SEWER OVERSIZING
LEBOVIC 7.246% $ 69,996 AND STORMWATER FACILITY No.4
IMPLEMENTATION COSTS
DATE: SEPT.•2008 DRAWN BY : A.G. PROJECT No.
MATTAMY 32.238 %o
31.1,419 aesIeNEa eY : R.w. 06456
CNECRED 81 :M.F. DRAWING No.
SCALE
N.T.S. FIG 1
R/P Dote SEPT. 11. 2008 Ric 06456 DH-LANDOWNERS-CS-FICI.DWG -